United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/1010/99 For Warwickshire County Council	JAMES GOUDIE QC and PETER OLDHAM (of Counsel) Legal Services Warwickshire County Council Clerks Department PO Box 9 Shire Hall Warwick CV34 4RR
EAT/1011/99 For the Governors of Queen Elizabeth School & others	BRIAN NAPIER (of Counsel) P Curbishley Consultancy 3 Cottesford Place James Place Lincoln LN2 1QF


 


MR JUSTICE BELL: We propose to give a short judgment in this matter identifying the points of appeal of Warwickshire County Council and the Governors of the three schools, which they wish to pursue on their appeals and which we consider should go to a full inter partes hearing in due course.

1. Taken in the order in which they appear in the skeleton argument of the County Council rather than in the Notice of Appeal, there is, first, the question of whether market forces including the need to recruit and retain staff, statutory and common law restraints on expenditure by local authorities or the fact of compulsory competitive tendering, can support a "material factor" defence within the meaning of section 13 of the 1970 Act.
2. Secondly, there is the question of whether Mr King was typical of his group, Grade 1, for the purposes of being a comparator.
3. Thirdly, there are questions of the relevance in principle or evidentially of lack of continuity of employment of Mr King and some of the applicants and the relevance of Article 119 of the Treaty of Rome to the point and Mr King's position as a material factor defence.
4. Fourthly, there is a question of whether the claims of the applicants who were caretakers can succeed when, it is said, less than half of them were female.
5. So far as the Governors are concerned, they wish to argue such of the County Council's points as may assist their cause. They have three additional points. Firstly it is argued that it was not open to the Employment Tribunal in the case of the applicants employed by the Governors to use employees of the County Council as comparators in respect of periods after transfers of employment to the Governors took place if in fact the Employment Tribunal did take that course. There is a second point that the validity of comparisons made by transferred staff has been referred by the Court of Appeal in another case to the European Court of Justice. It is contended on behalf of the Governors that the claims of the relevant applicants should be stayed pending the result of that reference. Thirdly, as Mr Napier has pointed out this morning, there was, it is contended, a failure by the Employment Tribunal to deal with the section 13 defence in the circumstances of the grant maintained schools, whereas that matter was dealt with in some detail so far as the County Council was concerned.
6. On all those matters, as we have already indicated, it is right that this appeal should go ahead to a full hearing.
7. Mr Goudie has assisted us on the Notes of Evidence, which might be relevant at the full hearing, slightly altered from the description of that evidence on the PHD form. We agree with him that it would be helpful to have the Chairman's Notes of Evidence relating to Mr King, the male Grade 1 comparator, and of the three witnesses relevant to the material factor defence, namely Mr B Perks, Mr P Garrett and Mr D Osborne. We direct that the Chairman of the tribunal be asked to produce his notes in those respects.
8. This is a Category A appeal. The best estimate of time at the moment, allowing for all arguments by both appellants and the respondents to the appeal is 1½ days. The only other direction we give is that skeleton arguments on behalf of all parties be filed not less than 14 days before the first day fixed for the hearing of the appeal.