United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 295_91_311, [1992] UKEAT 295_91_0311

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BAILII case number: [1992] UKEAT 295_91_0311

Appeal No. EAT/295/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 & 24 September 1992

Judgment delivered on 3 November 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS M E SUNDERLAND JP

MR G H WRIGHT MBE

MRS D BAKER & ORS APPELLANTS

ROCHDALE HEALTH AUTHORITY RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants Ms V Gay

(of Counsel)

Messrs Brian Thompson

& Partners

102 St Georges Square

LONDON SWLV 3QY

For the Respondents Mr K Armitage

(of Counsel)

Mr E G Jones

Legal Adviser

North West Regional Health Authority

Gateway House

Piccadilly South

MANCHESTER M60 7LR

MR JUSTICE WOOD (PRESIDENT): By Originating Applications dated variously in June 1990, 23 female Enrolled Nurses claimed equal pay with their chosen comparator, Mr Wood, who was a male Enrolled Nurse. They are all employed by the Rochdale Health Authority (the Health Authority) as Community District Nurses. Although there are other male nurses with the Health Authority Mr Wood is the only male Enrolled Nurse employed as a Community Nurse. They are all equally qualified. They work in teams at various medical centres within the district of the Health Authority.

The Applicants have throughout been supported and represented by their Trade Unions. It has been Confederation of Health Service Employees (COHSE), which has taken the lead role.

The claims are made both under S.1(2)(a) and S.1(2)(c) of the Equal Pay Act 1970 as amended. The like work and equal value issues were raised but by way of an amendment there was an additional defence put forward by the Health Authority under S.1(3) of the Act. The Tribunal found in favour of the Applicants on the like work claim but were satisfied that the Health Authority had proved a defence under S.1(3). It found that there was a good defence to the equal value claim and before us the only appeal was on the like work claim and the defence to it under S.1(3).

It is well known that during 1987 and 1988 there was deep-seated dissatisfaction within the ranks of the National Health Service over pay. In May 1988 the Government intervened and health authorities unilaterally announced a new clinical grade structure for nurses, midwives and health visitors. Thereafter the health authorities had the duties of regrading nurses. All community nurses including the Applicants and their comparator, were graded 'D'.

As the Tribunal found in paragraph 4 of its Decision,

"... It is common knowledge that this grading exercise caused very considerable controversy both within the various health authorities and within the various unions representing various categories of nurses. It is common knowledge that the new grading system was preceded by industrial action by nurses nationally. It is common knowledge that so much dissatisfaction was caused by the various gradings that very many appeals were lodged by dissatisfied nurses. All the community nurses in Rochdale, including the applicants and their comparator, lodged appeals against their grading of D. The appeals of all the applicants failed, although it is right to say that subsequent to the comparator's appeal, one of the applicants had a successful appeal and was regraded E."

This was Mrs Harding. She still remains an applicant because, we are told, that she has abandoned her functions which were the basis of her successful appeal to grade 'E', and is therefore once more now at grade 'D'.

On 22nd May 1989 (not 1988 as indicated in paragraph 5 of the Decision), Mr Wood's appeal was heard by a panel of three women with a Mrs Bridge in the chair. It was suggested by the Applicants that a man was in the chair, but the notes made at the time clearly indicated that this was not so. The Tribunal found that Mrs Bridge was in the chair. They heard her evidence and found her a convincing witness.

Prior to that appeal hearing Mrs Douglas - one of the present Applicants and seemingly a shop steward - discussed his appeal with Mr Wood. Subsequently she represented him. She helped him to prepare his case on paper and argued his case before the panel. In giving evidence for the Applicants she included the following -

"Mr Wood had very little to say. I made the representations on his behalf ... I did most of the talking. Mr Wood gave monosyllabic answers. ...Mr Wood does work in a rota with 3 charge nurses. ... I made no false representations on behalf of Mr Wood. He was saying his was a special case. I put that forward on his behalf. I think Mr Wood did have a special case for the males."

It was Mrs Hall, the Community Nursing Services Manager, who had originally graded the community nurses as grade 'D'. She was one of the two representatives of the Health Authority attending the appeal. She did not contradict the way in which Mrs Douglas and Mr Wood were describing his functions and was not therefore arguing against his upgrading.

Mr Wood succeeded and was regraded 'E'.

Both Mrs Bridge and Mrs Hall gave evidence for the Health Authority before the Industrial Tribunal as did Mr Gibbons and Mrs Carhill, both district nurse managers. The Tribunal seems to have been impressed by them.

The Tribunal makes its findings thus -

"8 The whole of this case revolved around catheterisation. To put it simply female community nurses dealt with the catheterisation of female patients and male nurses dealt with male catheterisation. I have referred deliberately to "male nurses" rather than male enrolled nurses. The only male enrolled nurse amongst the community nurses was, in fact, the comparator and he shared the responsibility for male catheterisation with the other male nurses who happened to be charge nurses (the equivalent of a female Sister) and there were only 2 or 3 of them. The result of this was, of course, that the comparator, Mr Wood, dealt with far more catheterisation than did his female counterparts on the basis that there were obviously far more female enrolled nurses than there were male enrolled nurses (the comparator only).

9 I can now deal with the evidence of Mrs Bridge relating to her hearing of Mr Wood's appeal. She said, and I quote. Mr Wood made a long oral submission apart from R8 (a written submission which Mr Wood had made). We felt that Mr Wood was attempting to and did prove to our satisfaction that there was an additional dimension to his job which was not reflected in the D grade. He had developed over the years certain expertise which he had developed into a district wide role in relation to male catheterisation. It was not that he was doing male catheterisation and the ladies were doing female catheterisation but that he had developed his own expertise so that he could and did advise others on the problems of male catheterisation and could and did train others. He gave as examples of General Practitioners coming to him for advice; and going into homes for the elderly and private nursing homes to give advice and train staff. We were also made aware that he worked in this specialised role with 3 male charge nurses who were grade G. He made a very strong claim that his role in this area of male catheterisation particularly in the teaching/training and advisory (roles) were substantially the same as theirs (the charge nurses). I think I questioned him to ascertain if any of the female staff carried out a similar district wide role and he said no. Our decision was unanimous. I felt the grading criteria were rather crude and often did not fit the posts exactly. We felt Mr Wood fitted in Grade E1(A) rather than D. We felt that Mr Wood's district wide involvement was crucial. It seemed, therefore, that Mrs Bridge and her panel had accepted Mr Wood's description of his role and that they were entitled to believe that that description was correct because Mrs Hall did not seek to contradict the description given by Mr Wood.

10 Mrs Barbara Carhill gave evidence to the Tribunal. She was the District Nurse Manager of Mr Wood. She was clearly anxious to achieve an E grading for all her community nurses but when pressed on the matter conceded, and I quote, "In view of the applicant's district wide responsibility and teaching and training I think he justifies a higher grade than the female district nurses".

11 It is right to say that Mr Wood was not available to give evidence. He has, we gathered, been seriously ill and although there was an application to adjourn we refused that application. Having heard the evidence, we are confirmed in our view that an adjournment was not appropriate. At the end of the day independent evidence, if it is available, is the best evidence to establish the precise role of a particular employee. In this case there was overwhelming evidence of Mr Wood's "special role". That evidence was the statement which he made to his appeal hearing which was corroborated by Mrs Hall's failure to contradict him and in the finding of, clearly, an experienced lay Tribunal. Further, and most convincing corroboration was the evidence of Mrs Carhill. She, at the end of the day, was in day to day contact with Mr Wood whilst he carried out his work. She had no bias either against the applicants or in favour of Mr Wood. This was evidenced by her anxiety to ensure a higher grading for all the community nurses. It was only when pressed that she gave her view that Mr Wood ought to have a higher grading than the female community nurses."

The Tribunal found "like work" and then reached its conclusion in paragraph 14 -

"14 There can be no doubt Mr Wood was paid more although he did like work. We are satisfied that the reason he was paid more was genuinely due to a material factor which was not the difference of sex. Therefore, although the applicants and their comparator do like work, the applicants are not entitled to equal pay with their comparator for that like work."

In final conclusion the Industrial Tribunal add two paragraphs at the end of the Decision -

"16 It is right in conclusion to emphasise that our finding in relation to the material factor defence related to the comparator's role as found by Mrs Bridge in the quotation from her evidence which I have set out above. If the difference between the comparator and the applicants had been that the comparator dealt simply with more catheterisation that would have been a difference based on sex. It is the larger dimension that we have found to be the fact in terms of teaching/training and advising. As Mrs Bridge said she and her panel found that Mr Wood had added an extra dimension to his job.

17 Whether or not Mr Wood fitted in to the criteria for Grade E is really immaterial. It is sufficient that there is a difference and that difference does not relate to sex."

It may be that this last paragraph was inserted because Mr Wood's case might be difficult to place within the strict criteria of grade 'E'. It seems to the industrial members at this Tribunal that there was no higher position within grade 'D' - a form of merit award - which might have helped to obviate obvious dissatisfaction with the present grading.

The Applicants appeal on the basis of their "like work" claim only.

Ms Gay puts their case with admirable brevity. She emphasises that the appellants do not wish to deprive Mr Wood of his grade 'E'. We do not understand her to be attacking the grading. She submitted that the material difference found is one of concealed or covert direct sex discrimination. The male catheterisation was allocated to Mr Wood, "... only men were allowed to perform male catheterisation and only women were allowed to perform female catheterisation." She further submitted that instructions existed that this was to be so. Thus no female nurse could develop the skill and experience which enabled Mr Wood to teach, give advice and to be regarded as a true expert, whom doctors could and did consult throughout the District. The finding of the Industrial Tribunal to the contrary, was, submitted Ms Gay, for them "to fly in the face of the evidence". If the Health Authority chose to reward Mr Wood for his exceptional value to the community on this basis, then it was founded on discrimination and all grade 'D' enrolled nurses were entitled to be upgraded under the Equal Pay Act. It was the "allocation and instruction" for the women nurses not to deal with male catheterisation which was fundamental. But for being a male, Mr Wood would not have got his grade 'E'.

Although Ms Gay did not appear before the Industrial Tribunal, we will approach this appeal on the basis that the Applicants' case was similarly argued before that Tribunal. If so it was rejected and it is important to note that in paragraph 16 the Industrial Tribunal clearly cautioned themselves to be aware of possible discrimination.

Ms Gay relied upon certain passages in the pleadings to which we will refer but there were only two passages in the Notes of Evidence upon which she relied.

First, Mrs Barbara Carhill where she says,

"I manage six nursing teams plus specialist staff. Mr Wood is one of my staff. I have managed him since August 1978. He had been an enrolled nurse before that. He was rostered for district with responsibility for catheterisation. I instructed Mr Wood to go into the private nursing homes to instruct the staff on male catheterisation and to teach the female staff how to catheterise male. He would deal with problems as and when they arose and help was sought. Mr Wood did I think on one occasion train other male nurses as part of their induction."

Secondly, Mrs Blythe who said,

"I am a district enrolled nurse. 8 years. I had the same training as Mr Wood. I did catheterise male patients until Mr Wood was upgraded 18 months ago. I was then told not to do any more. I'd contact Mr Wood or any other available male to deal with any male patients of mine. I was only stopped dealing with males after Mr Wood was upgraded to E."

This, submitted Ms Gay was the clear allocation and instruction upon which the Tribunal was bound to find in her favour.

Mr Armitage pointed out that the evidence of Mrs Blythe applied only to the situation after Mr Wood's appeal in May 1989. That period was not relevant to Mr Wood's grading. Secondly, it was not clear who it was who told Mrs Blythe not to carry out the male catheterisation any more. In the light of the whole evidence it was unlikely to have been the Health Authority and the industrial members are inclined to the view that it may have been the trade union. It is in any event unclear.

On the evidence of Mrs Carhill, Mr Wood was rostered on the district and not on an area basis. No doubt he was rostered with the male charge nurses as we have seen. This was clearly because it was likely that he would be the one to handle most of the male catheterisation, but this does not in our judgment, nor indeed in the judgment of the Industrial Tribunal, point to an instructional allocation that women were not to carry out male catheterisation. The contrary was true and clear instructions were given to that effect namely, that male nurses were not to carry out female catheterisation.

Mr Armitage for the Health Authority, submitted that a custom or practice had grown up over the years, and understandably so both in medical and human terms, whereby in this District, Mr Wood carried out the majority of the male catheterisation and that he had shown that with application he could make himself an expert in this field.

Mr Armitage further submitted that there was no rule or instruction and no evidence to support such a suggestion. To the contrary he drew our attention and submitted the following:-

(a) This point was not raised in the Originating Applications which concentrated on "like work";

(b) In the Notice of Appearance the phrase used was that "... the male enrolled nurse principally deals with male patients and the female enrolled nurses principally deals with female patients with regard to catheterisation procedures ...". He emphasises the word "principally";

"Male catheterisation

Within the Community only those nurses (male and female) who have the necessary level of competence undertake male catheterisation. Because of the sensitive nature of the catheterisation procedure and the isolation of nursing staff who give nursing care to patients in their own homes the provision of this nursing activity has in the main been undertaken on a District wide basis on a monthly rota by male nursing staff of the Community Unit (ie three charge nurses and 1 enrolled nurse.

The majority of female nurses do not have the appropriate level of competency to undertake male catheterisation. Because of the sensitivity of the procedure and the potential vulnerability of female staff who often give nursing case in isolation with the patient's home female nurses in the main do not undertake male catheterisation."

"QdInformation as to whether any of the female nurses ever perform male catheterisation and whether they would be permitted to do so. If they do, which of the named claimants do, and how often?

Jean Lord EN was permitted to undertake male catheterisation because of her post enrolment experience and training on a genito-urinary hospital ward. EN Lord provided this service to the male patients of her District Nursing Team, she did not participate on the male catheterisation rota in the provision of a District wide service. Male catheterisation is not routinely undertaken by ENs but because of Mr Wood's long experience (20 years) he has been allowed to continue to undertake the procedure."

"QdDetails of the selection methods adopted to determine to whom to allocate this district wide function.

The Community Unit, employs 3 male Charge Nurses, and one male Enrolled Nurse. The number of male patients who in the past have been catheterised would indicate that in order to provide an adequate service to such patients that a minimum of four male staff are needed to provide a seven day per week cover for this procedure.

Because of the sensitivity of the procedure and the isolation of the working environment of community nursing staff traditionally this nursing activity has mainly been carried out by male members of staff."

He emphasises the words underlined and relies on this document to indicate the practice and the reasons behind it.

(d) All the Applicants (save possibly one) have training and competence to carry out male catheterisation and prior to May 1989 in fact did so. Schedules were produced showing this.

(e) Mrs Carhill gave evidence as follows. "I have no objections to female catheterising males provided they agree and have had the training. The problem is that few of them are agreeable or have had the training;"

(f) It was open to a woman to acquire specialist skills in women's catheterisation.

(g) In its evidence to the appeal panel the Health Authority had said, "As a male district enrolled nurse Mr Wood is rotated with two district charge nurses to be responsible for the catheterisation of male patients. Catheterisation is carried out after being prescribed by a medical officer (usually the patient's general practitioner). Catheterisation is one of many routine nursing duties, but because of the sensitive nature of catheterisation of male patients within the Community setting it is normally undertaken by male members of the District Nursing Team;"

(h) In the notes made by the appeal panel there is an indication that males usually do male catheterisation because "not very nice and females do not do this".

(j) Mr Armitage also points out with some force that there was no single question put in cross-examination of the Health Authority witnesses which went directly to this argument;

(k) Mr Wood had been employed for over 20 years and over those years had built up an expertise which together with his individual application and talent had made him an invaluable member of the Community Nursing Group and whose advice was sought throughout the District. There was no evidence that there had been direct discrimination over all those years.

No one has argued before us that Mr Wood was not entitled to higher grading or in any event higher pay which could only be achieved by higher grading. The argument is that if he is granted this as a result of the expertise gained through direct discrimination, all the Applicants must be upgraded also.

The Industrial Tribunal were clearly satisfied that Mr Wood carried out "an extended role" - "a special role" - his work involved "a wider dimension" - "an extra dimension". Where male catheterisation was concerned he was treated as equal with the charge nurses. Problems were referred to him throughout the District.

Upon the evidence before it the Industrial Tribunal were perfectly entitled to find that the increase in pay was justified and that it was not due to direct discrimination as the background experience and expertise had occurred through custom and practice not by any direct act of the Health Authority. Thus the Health Authority had established its defence, the burden of proof being upon it.

There is one further matter which occurred to us in reading this Decision. It arises from a clear finding of fact, undisputed by either side, that the difference in pay between Mr Wood and the Applicants was due to a difference in the work which he actually did and to his value to the Health Authority thereby. Our interest was aroused by the procedure adopted.

Most appeals coming before us under the Equal Pay Act are based on an "equal value" claim, and this is the first for some time where the primary issue was "like work". The equal value claim is not now pursued.

Mr Armitage appeared before the Industrial Tribunal. Although the burden of proof was upon the Applicants to prove "like work", and upon the Respondents to prove a S.1(3) defence, Mr Armitage was required to open the case and to call his evidence first. He assumed thereby that the "like work" issues were regarded as unarguable, and he did not therefore draw the attention of the Industrial Tribunal to a number of cases on those issues. He told us that "like work" was not really argued.

The approach to the "like work" issues has been clearly laid down by authority. Having found the facts the Industrial Tribunal must first approach S.1(2)(a) and this approach is governed by S.1(4). They must follow the correct sequence. Waddington v. Leicester Council for Voluntary Service [1977] ICR 266. The first question is - Were the Applicants and Mr Wood employed on work which was the same or of a broadly similar nature? This they answered in the affirmative. Secondly, where there was a difference between the things which the Applicants and Mr Wood actually did, and was it a difference of practical importance in relations to the terms and conditions of service? Supervision, responsibility and control are material to this issue - Waddington (supra): Eaton Ltd v. Nuttall [1977] ICR 272.

The correct approach is most usefully to be found in the judgment of Bridge LJ in Shields v. E Coomes (Holdings) Ltd [1978] ICR 1159:1179G.

"We have been referred to a number of reported decisions of the Employment Appeal Tribunal in which the proper approach to these questions has been considered. The first question, whether the work of the man and woman to be compared is of the same or of a broadly similar nature, does not appear to have given rise to difficulties. In relation to the second question, whether differences between the things done by the employees being compared are of practical importance in relation to terms and conditions of employment, I would respectfully adopt as correct the general approach expressed by Phillips J., giving the judgment of the Employment Appeal Tribunal in Capper Pass Ltd v. Lawton [1977] ICR 83, 87-88, where he said:

"In answering that question the industrial tribunal will be guided by the concluding words of the subsection. But again, it seems to us, trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being like work unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment."

In considering this second question, it has been emphasised in a number of cases that a difference between duties which the man and woman whose work is being compared are under a contractual obligation to perform is not a relevant difference unless it results in an actual difference in what is done in practice. It is by comparing their observed activities not their notional paper obligations that the relevant differences are to be ascertained. This is an important principle. Where the differences between the employees to be compared are not reflected in differences in things done, they fall for consideration only when the third question is asked, viz is the variation between the woman's contract and the man's (a difference in rate of pay or other contractual benefits) genuinely due to a material difference (other than the difference of sex) between her case and his? The kind of differences which can be considered at this stage are manifold and it would be undesirable to attempt to categorise or limit them. A difference in mere seniority, whether measured by age or lengthy of service, would be an obvious example. It may nevertheless be difficult to draw a clear line of demarcation between differences proper for consideration under subsection (4) and those which can only be considered under subsection (3). The Employment Appeal Tribunal has held that differences in the degree of responsibility borne by two employees may properly lead to the conclusion that there are differences between the things they do for the purposes of subsection (4), even though it may be difficult to pin-point and identify the precise differentiation of activity: Waddington v. Leicester Council for Voluntary Service [1977] ICR 266 and Eaton Ltd v. Nuttall [1977] ICR 272. No doubt this principle is correct, though how far it can be applied to the facts of particular cases may be debatable and must in the end be a matter of degree. The important thing is that the words of subsection (4) "differences ... between the things she does and the things they do" should in no way be strained beyond their natural and ordinary meaning. If the differences relied upon to justify the more favourable treatment of a man than a woman cannot fairly be brought within these words, the employer still has the full protection of the fall-back provision in subsection (3) provided always that he can discharge the onus of making good his case of justification in accordance with the terms of that subsection."

The case where grading in particular was considered is Capper Pass Ltd v. Allan [1980] ICR 194, a decision of this Appeal Tribunal presided over by Slynn J. In that case, as in the present case, the Tribunal found that there was a distinction in the grading which was entirely justified. The relevant passage is at p.199D,

"... However, it seems to us quite plain from paragraph 10 of their decision that the tribunal accepted that the distinction between grade one and grade two was entirely justified. They seemed to accept that the difference between the two grades was properly reflected in the rates of basic pay. This difference in appears to be justified because of the difference in relation to responsibility in stock control and the handling of money. Equally, it seems to us that the tribunal accepted that the employees in grade three were in a lower category than those in grades one and two. Indeed, the applicant herself did not suggest that she was entitled to the grade differential; merely to the additional productivity payment which was paid to the men who had worked as process workers and who were now working in the canteen. The matters which the tribunal thought that the parties would have to take into account in arriving at a compromise solution appear to underline that they accepted that the differences between the grades were justified.

If, as we think, this was the approach of the industrial tribunal (which we, and particularly those two members who have commercial and industrial experience, think was in any event right) then it seems impossible to say that these two persons were engaged on "like" work within the meaning of section 1 of the Equal Pay Act 1970. Much of the work may have been broadly similar, but if the differences such as stock handling and extra responsibility for money justify the differences in the grading, then it seems to us that they prevent the two people's work from being "like" work for the purposes of the Act. The tribunal, having accepted the differences between the grades as being justified, should then have concluded as a matter of law on the evidence that the applicant was not engaged on like work with Mr Evans. Coming to the opposite conclusions, it seems to us that they erred in law."

It follows from the reasoning above that this appeal must be dismissed as in our judgment the Industrial Tribunal were perfectly entitled on the facts to reach the conclusion which it did and that in any event if it erred in that respect the decision must inevitably stand as the only correct decision in law on the like work issue was that the work carried out by the Applicants was not like work with that carried out by Mr Wood.