United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS D ROSE (of Counsel) Messrs Irwin Mitchell Solicitors West Brow 9 Arkwright Road Hampstead London NW3 6AB
For the Respondents	MR A LYNCH (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR JUSTICE KIRKWOOD: Mrs Evesham appealed to the Employment Appeal Tribunal against the decision of an Industrial Tribunal at London (South) on the question of remedy. The extended reasons for that decision were sent to the parties on 29th October 1997. The remedy hearing was held following a decision in Mrs Evesham's favour under the Equal Pay Act 1970.

The remedy hearing came at or towards the end of litigation that has been very long-running indeed. In 1987 Mrs Evesham applied to the Industrial Tribunal under the provisions of the Equal Pay Act with the question whether her work was of equal value to that of her male comparator.

Mrs Evesham was a speech therapist. Her comparator, Dr Mollan, was a clinical psychologist.

Mrs Evesham was not the only one to apply. There were at the same time applications by other speech therapists, notably Dr (later Professor) Enderby and Mrs Hughes. They too posed the same question with regard to their own work and that of their chosen comparators.

Those three cases, which have marched together and at times have been heard together, have posed difficult questions for national courts and tribunals, and the European Court of Justice.

Eventually, the matters of law on the equal value question having been resolved, Mrs Evesham's case came before the Industrial Tribunal sitting at London (South) on dates in April, June and July 1997. The Industrial Tribunal decided that at the material time (the date of the Originating Application - 6th April 1987) Mrs Evesham's work was of equal value to that of her comparator, Dr Mollan. The Industrial Tribunal gave its extended reasons for that decision on 9th September 1997; and consequent upon it held a remedy hearing (on Mrs Evesham's case and others) on 29th, 30th September and 1st October 1997.

Section 1(1) of the Equal Pay Act 1970 provides that where a woman's contract of employment does not include an equality clause, it shall 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 woman is employed on work which ... is, in terms of the demands made on her (for instance 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 ..."

Thus, having found Mrs Evesham's work to be of equal value, the task for the Industrial Tribunal was to determine in what respect or respects Mrs Evesham's terms of employment were less favourable than those of her comparator Dr Mollan, and how they should be modified.

It was all about pay. Mrs Evesham was a District Chief Speech Therapist at the appropriate level of speech therapists' salaries; Dr Mollan was a District (Top Grade) Clinical psychologist, at the appropriate level of clinical psychologists' salaries. He was paid substantially more than Mrs Evesham.

The terms of employment of both Mrs Evesham and her comparator provided for annual incremental pay increases. It is self-evident that because Dr Mollan's salary was higher than Mrs Evesham's, so was the amount of his annual increment.

The basic principle which Mrs Evesham should be paid no less favourably than Dr Mollan was not in issue. It was the gloss upon that which, however, led to dispute and has led to this appeal.

Mrs Evesham had been a speech therapist for some 35 years. She had been in her post, at 1987, for six years. She had six years of annual increment to her salary at her grade as a speech therapist. Dr Mollan, on the other hand, albeit highly qualified, was in his first year in his post - incidentally, a newly created one.

The case for Mrs Evesham was that, her work having been found to be of equal value that of Dr Mollan, she should be paid not the same as Dr Mollan but in the salary range for clinical psychologists of Dr Mollan's grade. She should enter it, not where Dr Mollan was at the bottom rung because he was newly in post, but at the level commensurate with her six years of service and annual increments in her speech therapy post.

The case for the respondents was that equal value as at 1987 was found having regard to Mrs Evesham's experience, seniority and stage of professional development. The choice of comparator was hers; her work was assessed as being of equal value to his. She should be paid the same as Dr Mollan at the relevant date (1987) and should thereafter have the benefit of the same annual increments as him.

Following the principal finding in the case, the respondents had conceded a further claim by Mrs Evesham for arrears of remuneration under section 2 of the Equal Pay Act. By section 2(5) that is limited to two years. A point has been referred to the European Court of Justice on that two year limitation, and whether it should be six years (Levez v Jennings Ltd [1996] IRLR 499).

Counsel for Mrs Evesham contends that by making that concession, the respondents concede equal value for the two years prior to 1987.

That is relied upon by Counsel for Mrs Evesham in an endeavour to illustrate the injustice (and fallacy) in the respondents' contention as to the point of entry to the pay scale. It is argued that the cumulative effect of entry at the lowest rung and two years (or perhaps six years) of arrears is that that level of pay leaves Mrs Evesham stuck on the lowest rung for three (or seven) years, whilst the comparator's terms of employment give him year by year increments. In paragraphs 9, 10 and 11 of the its extended reasons the Industrial Tribunal set out with some care the contrasting arguments of the parties. There is no need for us to import those into this judgment. The conclusion is expressed in paragraph 12:

"The Tribunal reminded itself that a claim of equal value is a comparison of the work of two people without reference to the values of the organisation in which they work. The Tribunal looked at the terms of the legislation, in particular at section 1(2)(c) of the Equal Pay Act and asked itself what was the term of the male comparator's contact which was more favourable. The Tribunal found that it was that the comparator was paid on the clinical psychologists 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 Applicant's 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 had some difficulty about the operative date in these circumstances and decided that it was the date that the originating applications were first presented. It considered whether the fact that an Applicant is allowed to claim two years' back pay might indicate that Miss Gay's submissions were correct. However, it considered it a matter of interpretation of section 1(2)(c) and pragmatically that the appropriate and operative date is the date that the originating application is presented and once equal value is established the Applicant mirrors the comparator on the incremental pay scale unless a section 1(3) defence is established. The Tribunal finds that, where incremental progression occurs over a number of years, the Applicants will be entitled to receive those progressions even if their comparators were to leave and as regards arrears of pay, again 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 that time."

At the first hearing of these case back in 1988 and 1989 the Industrial Tribunal gave a detailed decision which, thought later reversed, contains detailed findings of historical background which are unchallenged.

That tribunal traced the history of the evolution of development and organisation of the profession of speech therapy during this century.

"The Tribunal is satisfied that what commenced as a craft undertaken by the well-intentioned has developed into a highly skilled profession.

...

Over the years the growth in specialised knowledge together with increased personal experience has given rise to increasing and merited aspirations in speech therapists.

...

The overall impression of the speech therapy profession with which the Tribunal was left was that, as in all professions, there was a considerable variation in work undertaken by the practitioners, their abilities, the academic qualifications of those who entered the profession prior to 1984, and the nature of the work undertaken and particular whether it was in the field of education or medicine."

This case has been presented to us on the uncontroversial basis that Mrs Evesham (as well as Professor Enderby and Mrs Hughes) are leaders in their field.

The appellants' case is that any and every term of the contract of employment that is less favourable than the comparators must be modified in order to satisfy the requirements of section 1(2)(c) of the 1970 Act. The statutory requirement is that the terms should be no less favourable: not that it should not be more favourable.

The term of Mrs Evesham's contract was less favourable was that she was employed at a lower rate of pay than Dr Mollan. For example, a speech therapist of six years standing in post would, like a clinical psychologist of the same standing, be at point 6 on the scale. But the scale for the speech therapist was lower than for the clinical psychologist.

The equality clause required the amendment of that speech therapist's contract of employment so that she was on the same pay scale as her comparator clinical psychologist. She would enter it at what ever incremental point was appropriate to her years in post, regardless of the point on the incremental scale reached by the comparator. There was no inequality in the contracts in relation to the applicability of the incremental scale, only in relation to the amount payable under the incremental scale.

The appellants contended that equal value is established by comparing with the demands made by the women's jobs and the comparators' jobs. Experience is relevant in the context of the amount of experience required by the post, which is not to be measured in years alone. The annual increment is not a reward for accumulated experience but is a length of service increment by means of an automatic annual pay increase. That forms part of the contractual entitlement.

It is fundamental to the appellant, Mrs Evesham's, case that, having established that her work was of equal value to that of her comparator, her contract of employment should be amended to put her on the same pay scale as that of her comparator; or, more precisely, to that of clinical psychologists of the same grade as her comparator. To require, as the Industrial Tribunal did, that she enter it at the lowest rung which is where Dr Mollan was, deprives her the benefit of the annual increments in her post, to which she was contractually entitled.

Furthermore, the effect of the Industrial Tribunal's decision was that Mrs Evesham's entitlement to two years of arrears (which the respondents had conceded) would be payable only a the lowest rung of the pay scale, where her comparator was. It was submitted that no man employed by the respondents, would be required to be stuck for three years (or for seven years) without the benefit of annual increment.

The nub of the respondents' case is that Mrs Evesham having established work of equal value to that of her comparator, she is entitled to have her conditions as to her pay amended so as to be no less favourable than that of her comparator; that is to say an equal level of pay and thereafter the same entitlement to annual increments. What Mrs Evesham has not established, however, is that her work is of equal value to that of all clinical psychologists within the same pay grade as her comparator.

The choice of comparator was Mrs Evesham's'. She chose Dr Mollan, newly in post and on the lowest rung on the relevant scale.

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 Mollan. Dr Mollan 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) established 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 rights on the comparator's contractual incremental 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 of the incremental level appropriate for the two previous years.

Had Dr Mollan been of equivalent service in post, that contention would have caused no difficulty. The difficulty only arises if Mrs Evesham is to enter the scale at her comparators 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 a 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 section 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.

Accordingly, we find that the Industrial Tribunal did not err in law. This appeal is accordingly dismissed.