United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


MR JUSTICE HOLLAND:

Introduction

This matter turns upon the Equal Pay Act 1970 and it as well to cite forthwith the relevant provisions:

"Section 1 (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-

(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 women'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;

(b) where the woman is employed on work rated as equivalent with that of a man in the same employment-

(i) if (apart from the equality clause) any term of the woman's contract determined by the rating of the work is or becomes less favourable to the woman than a term of 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 and determined by the rating of the work, the woman's contract shall be treat as including such a term;

(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 become 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. .....

(4) A woman is to be regard as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.

(5) A woman is to be regarded as employed on work rated equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading."

Mrs Sarah Worsfold is a Senior Speech Therapist employed by the Southampton District Health Authority. She contends by reference to Section 1(2)(c) she "is employed on work which, not being work in relation to which paragraph (a) and (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 a man in the same employment." The man so identified is Mr S. Wilkinson, a clinical psychologist.

Mrs Julie Lawson advances a similar case, this time by reference to Mr A. Hall, a pharmacist. Thus it is that both applicants seek respective equality clauses as provided for by the Act.

These applications were the subject of prolonged hearings before a single Industrial Tribunal sitting at London South, which Industrial Tribunal had had prior experience of this type of issue. There were two responding parties, the employers and the Secretary of State for Health - the latter having a locus by reference to the Department's responsibility for pay rates in the Health Service. In the event the Industrial Tribunal allowed both applications and directed subsequent remedies hearings. The Respondents, surprisingly separately represented before the Industrial Tribunal, now jointly appeal to this Tribunal contending that each decision reflected an error of law. It is convenient to deal first with the appeal against the decision on favour of Mrs Worsfold, which decision appears by way of Extended Reasons of the 10th March 1998. The Extended Reasons justifying a decision in favour of Mrs Lawson are dated the 27th April 1998 and for present purposes effectively adopt the reasoning of the earlier decision.

The Industrial Tribunal

Crucial to the disposal of these appeals is the approach and reasoning of the Industrial Tribunal in Mrs Worsfold's case. It can be traced as follows:

1. Paragraphs 1 to 19. The Industrial Tribunal identifies issues and its approach to their resolution. It records and explains the instruction of Mr J. Colville as "an independent expert for assessment on the question of equal value" and it describes at length an extraordinary forensic furore over the admission of his report.

2. Paragraphs 20 to 25. The Industrial Tribunal subjects his report to close analysis, indicating the areas of acceptance and dispute. Mr Colville had reduced his conclusions to ratings, terminating in an assessment of fifty-four for the Applicant and fifty-six point five for the comparator. Following its own analysis, the Industrial Tribunal adjusted the ratings so as to increase the assessment for the Applicant to fifty-five and to confirm, by a slightly different approach, the assessment of the comparator at fifty-six point five.

3. Paragraph 26. The Tribunal citing a passage from its own decision in a case called Evesham, directed itself that "every case should be looked at on its merits in terms of the demands made upon the job holders and the jobs would not be of equal value where there was an overall measurable and significant difference between the demands of the respective jobs. What is a significant difference overall would depend on the facts of the particular case, including the relative importance of particular factors applicable to the job."

4. Paragraph 27. Referring again to Evesham, "..... the Tribunal said that reference to point scores should not be a final determinant of what is equal value although they may be a guide. The issue before this Tribunal was what constitutes an overall measurable and significant difference in demand."

5. Paragraph 28. The Industrial Tribunal noted that originally the Equal Pay Act 1970 had only contained the routes to an equality clause provided by, respectively, Section 1(2)(a) and 1(2)(b). The adequacy of the totality of these provisions for the purpose of fulfilment of the obligations imposed by Article 119, Treaty of Rome as developed in the Equal Pay Directive (75/117/E.C.) was, it further noted, successfully challenged in Commission of the European Communities v Unit Kingdom (1982) 1CR 578 - a decision of the European Court of Justice. As summarised in the head-note, that Court decided "..... that the legislation of the United Kingdom, by making it a requirement that a right to equal pay for work of equal value should only be available in circumstances where a job evaluation study had been carried out with the consent of the employer, amounted to a denial of the right in circumstances where no job classification had been made; and that, accordingly, the United Kingdom had not adopted measures to ensure that a worker could claim before an appropriate authority and obtain a finding that his (sic) work had the same value as other work." Following upon that decision, again as the Industrial Tribunal noted, the Act was amended to enact Section 1(2)(c) with a view to meeting the Court's criticisms.

6. Paragraph 29 (wrongly numbered, 28) merits citation in full:

"28. In the light of the decision of the ECJ in that case it appears to the Tribunal that section 1(2)(b) of the Equal Pay Act 1970 as amended, i.e. dealing with work rated equivalent, is not strictly necessary and could be subsumed within section 1(2)(c) of the 1970 Act as amended. Nevertheless, the Tribunal notes from its own industrial experience that under a job evaluation scheme the points score between one job and another need not necessarily be the same for the jobs to be placed in the same pay band or grade. The Tribunal also notes that the definition of work rated as equivalent under section 1(5) of the 1970 Act is in the same terms as work of equal value under article 1 of the Equal Pay Directive. The Tribunal therefore concluded that an Applicant who brought a claim under section 1(2)(c) should not have a heavier burden placed upon her in pursuing a claim of equal value. To require an Applicant bringing a claim of equal value under section 1(2)(c) to establish an equal or greater points score would in effect be to treat that Applicant less favourably than one bringing a claim under section 1(2)(b) of the 1970 Act."

7. Paragraph 30 (wrongly numbered 29). The Industrial Tribunal noted and discussed Springboard Sunderland Trust v Robson (1992) 1CR 554, a case flowing from an application made by reference to Section 1(2)(b). Here there was a job evaluation scheme by reference to which the applicant, Mrs Robson, scored four hundred and ten points and the comparator, four hundred and twenty-eight points. Noting that the scheme banded four hundred and ten to four hundred and forty-nine points as grade 5 (thus embracing in the same grade both the applicant and the comparator), the Employment Appeal Tribunal held, largely on pragmatic grounds that the Applicant succeeded. The Tribunal cited from the report at 558 F a submission on behalf of the applicant: "..... job evaluation schemes are not a precise mathematical science, but an art, a proposition for which there is much authority, and that in those circumstances it would not be right in principle, unless one was driven to it, to have regard to the precise mathematics rather than the end result involved in the scheme itself."

Paragraphs 31 and 32 (wrongly numbered 30 and 31). These merit citation if full:

"30. The Tribunal has already noted that the wording of section 1(5) of the 1970 Act is similar to the wording of the definition of equal value contained in article 1 of the Equal Pay Directive. It notes the dicta of the EAT in the Springboard Trust case and has concluded that equal value should not be interpreted as a direct equivalent in score or greater, but should be assessed in broad terms in a practical setting. The Tribunal therefore finds that an overall measurable and significant difference is one which the Tribunal would expect to see reflected in the real world in the terms of employment for which equality is sought, such an assessment having been made free of gender bias and having taken into account any material factor difference.

31. The Tribunal has applied this definition to the case of Mrs Worsfold and her comparator and finds that there is no such overall measurable and significant difference in the demands made upon Mrs Worsfold as compared to her comparator. It is supported by this in the evidence of Mr Colville to the Tribunal that if he as a manager were grading the job for job evaluation purposes the differences would not lead to a difference in grading in the real world. The Tribunal therefore concludes that the Applicant was engaged on work of equal value with that of her comparator."

The Appeal

On behalf of the Health Authority and the Secretary of State, Mr Lynch, submits that the decision reflects an error of law. He draws attention to the Industrial Tribunal's acceptance (in paragraph 32) of Mr Colville's evidence "that if he as a manager were grading the job for job evaluation purposes the differences would not lead to a difference in grading in the real world." By that finding, the Industrial Tribunal betrayed an inclination to deal with this as a Section 1(2)(b) case, that is, as a case concerned with grading under a job evaluation scheme in which (as Robson's case illustrates) differences in point scores may not preclude a finding of "work rated as equivalent" by way of pragmatic reference to the grading bands. In any such approach the Industrial Tribunal, he submits, erred in law: Section 1(2)(c) provides a separate route to an equality clause owing nothing to a notional job evaluation scheme and its grading. As to how the Industrial Tribunal came so to err, appears from paragraph 29: the heretical and gratuitous proposition that Section 1(2)(b) is not strictly necessary and could be subsumed within Section 1(2)(c) betrayed a serious misdirection and paved the way for resolving a Section 1(2)(c) case with Section 1(2)(b) argument. When pressed by this Tribunal as to what all this leads to, he suggests remitting for a rehearing, or at least for a further evaluation of the points score, this time 'taxing' the component elements by weighting.

In response, Miss Rose submits that this argument has to fail in limine. She says that on a proper construction, the evidence of Mr Colville as to his assessment for grading purposes did not found the decision; it was merely invoked to add weight to the decision already arrived at and appearing as the first sentence of paragraph 32. In its turn, that decision reflects the Industrial Tribunal's earlier direction to itself culled from its decision in the Evesham case, a direction to which (she observed) no exception is taken by Mr Lynch and which in any event owes nothing to Section 1(2)(b). She further submits that the Tribunal having by that route made the essential decision, it was entitled to point out that the result accorded with that arrived at by Mr Colville by another route. Averting to the structure of the Act and the relationship between Section 1(2)(b) and Section 1(2)(c), she made further submissions which have helped found our general observations as set out later in this judgement.

Mrs Lawson's Case

The respective arguments had inevitably to be the same.

Our Findings

Miss Rose's submissions as to the ratio of the Industrial Tribunal are plainly correct. We have cited paragraph 32 in full; the decision is clearly contained in the first sentence, which in its turn reflects the earlier uncriticised direction as to the issue for resolution arising by operation of law; and further elaboration is otiose. It necessarily follows that Mr Lynch's submissions do not arise, there is no error of law and these appeals must be dismissed. That said, we did of course receive submissions on the premise that a point arose reflecting the relationship between Section 1(2)(b) and Section 1(2)(c); further, we learned from counsel that that relationship had not had consideration in any known decision of this Tribunal, hence the efforts of the Industrial Tribunal to define its own approach to the case before it, in part by reference to its own earlier decision, in part by reference to the E.C.J. decision and in part by reference to a decision of this Tribunal in a Section 1(2)(b) case. With, we hope, the caution that should attach to obiter dicta, we venture the following propositions:

1. The Equal Pay Act 1970 as amended reflects the efforts of the United Kingdom to legislate so as to give specific effect to Article 119, Treaty of Rome:

"Article 119

Each member state shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

For the purpose of the 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-

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.

and

Article 1, Council Directive (75/117/EEC):

Article 1

The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and condition of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex."

2. The device selected by the Act to give such effect is the same, no matter how the complaint arises: the implication of an equality clause.

3. As is to be implied from the observations of the Industrial Tribunal, Parliament could have satisfied its Treaty obligation with but one 'point of entry' to the implication of an equality clause: for example, by one provision analogous to 1(2)(c). Thus, Article 119 invokes 'equal pay for equal work; the Directive introduces the concept of 'equal value' and it is at least arguable that Section 1(2)(c) without the exclusion "not being work in relation to which paragraph (a) or (b) above applies" would totally embrace that which is required by way of legislation so as to render as otiose not just Section 1(2)(b) but also Section 1(2)(a). Thus far, we agree with the Industrial Tribunal.

4. However, in the event for reasons which do not concern us, Parliament decided to provide not just one route for identification of an equality clause, but initially two routes (a) and (b) and now three (adding in (c)). It may be that it was felt that this alternative style in drafting would better enable the parties and the Industrial Tribunal to focus on any particular case; it may be there is some other reason we have not discerned - either way, there before us is the will of Parliament and Mr Lynch is right to protest that it is wrong for the Industrial Tribunal in paragraph 31 to elide or conflate (if that is what it did) Section 1(2)(b) and Section 1(2)(c). It is the task of Industrial Tribunal's to apply the statute 'as is'.

5. That said, all three routes lead towards the same end: an equality clause and compliance with the Treaty obligation. That said, whether the route be (a), (b) or (c) the essential exercise is one and the same: a 'jury' decision based on the statute and all relevant factors. We emphasise the 'jury'. Indisputable equality as a concept is unlikely to be before an Employment Tribunal and, absent such, there must be a 'jury' decision whichever be the route. As Miss Rose pointed out this is anticipated and emphasised by the section. A Industrial Tribunal concerned with a Section 1(2)(a) issue is to be guided by Section 1(4) with its judgmental concept, "the same or a broadly similar nature." A Industrial Tribunal concerned with a Section 1(2)(b) issue is in its turn to be guided by Section 1(5), which enjoins a Industrial Tribunal not to accept equality as simply determined by work ratings, but to make a judgment as to "equal value, in terms of the demands made on a worker under various headings." That leaves the Industrial Tribunal concerned with a Section 1(2)(c) issue: the very terms of the paragraph can for a judgmental 'jury' exercise of inevitably similar kind.

6. Granted that each route, (a), (b) or (c) has the same end and invites a jury decision taking account of factors which, whilst not identical, have at least similarity, how and in what circumstances could a difference in route mean a difference in result. This point is largely outwith this judgment: we cannot speculate as to hypothetical situations. That said, careful consideration of Springboard Trust v Robson op. cit. in response to Mr Lynch's submissions is helpful. In a Section 1(2)(b) situation, Mrs Robson's work was prima facie not of equal value to that of the male comparator: as has already been pointed out the ratings were, respectively, four-hundred and ten to four-hundred and twenty-eight. In the event, ex hypothesi, there the matter fell to be adjudged by reference to the employers' job evaluation scheme which served to give an equal value as between the jobs, both being graded 5. On that basis, this Tribunal was able to uphold the Industrial Tribunal's majority decision in favour of an equality clause: as a jury decision it could not be shown to be perverse, not least when the denial of an equality clause would presumably have been bizarre, given the ultimate identical pay grading. Why is this case helpful? It serves to demonstrate that the Industrial Tribunal has to function as a jury; that in the Section 1(2)(b) situation the Industrial Tribunal acting as such has to take into account amongst the factors material to its decision the realities of the relevant job evaluation scheme; and that in a Section 1(2)(c) situation there is presumably no such factor bearing upon the decision. We agree with Mr Lynch that, absent the job evaluation scheme grading, Mrs Robson's work may not have been rated as of equal value (that is, as a Section 1(2)(c) complaint it may have had a different result); and that, absent an actual job valuation scheme, Mr Colville's comment that he would similarly grade Mrs Worsfold and Mr Wilkinson is definitive of nothing save as to the scale of his rating system, that is, that a range fifty-five to fifty-six point five is likely to be encompassed within one pay grade (a statement which one would have respectfully thought to be hardly controversial - this appeal notwithstanding). It is not a question of the 'three route' drafting inevitably achieving disparate results; it is a question of that drafting serving, as presumably was intended, to focus the jury decision on the factors that are made material by respectively, employment on like work (Section 1(2)(a)), by employment on work rated as equivalent (Section 1(2)(b)) and by employment on work that falls outside such categories (Section 1(2)(c).

Conclusions

To decide this appeal all that we have needed to consider (and all that we were ever going to consider) have been the 1TI the Notice of Appearance and the respectively excellent skeleton arguments. In the event we were confronted by all such together with every other document that was before the Industrial Tribunal, the total extending to two full lever arch files, all as prepared by the Treasury Solicitor. We reiterate the protest made at the hearing. The wanton inclusion of everything not only creates genuine logistic difficulties for this Tribunal (which seeks to give lay members an opportunity for advance reading) but it betrays a failure to understand the limited function of this Tribunal and the inevitably limited nature of this appeal - and of course it adds pointlessly to the costs. Further it reflects a poor exercise in advocacy: if confronted by a forest, there is no temptation to identify important trees.

We conclude by hoping that there is now early attention to remedies so as to bring these long running matters to an end.