United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	COLIN BOURNE (of Counsel) Instructed by: Bridge McFarlane Solicitors 19 South St Mary's Gate Grimsby DN31 1JE


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the Decision of the Employment Tribunal sitting at Hull in February, March and April 2002. It comes before us by way of Preliminary Hearing to determine if there is a point of law which can properly be argued in full before the Employment Appeal Tribunal.
2. The Notice of Appeal was filed in July 2002. An application is made to amend that Notice of Appeal by addition of new paragraphs, 8 and 9, by document dated 23 October 2002.
3. The Appellant has leave to amend conditional upon no objection to the amendment being taken by the Respondents within 14 days of receiving the Order consequent upon this judgment.
4. The claim before the Employment Tribunal related to applications for equal pay on the grounds that work was of "like work" or of equal value to that of named comparators in a different department at the same premises of the Respondents. The Notice of Appeal criticises the conclusion adverse to the Applicants in relation to both aspects.
5. In the decision the Tribunal set out the details of the business of the Respondents. There was a packing room where the Applicants worked, there was the bird house where the comparators worked, the lighter part of the Respondents' products being dealt with in the packing room.
6. The Tribunal analysed in some detail the method of packing and the differences in weights involved. They then dealt with the bird house which involved loading delivery vehicles twice a day manually with a conveyor belt, which would take half to three quarters of an hour, by a team of about four people. In addition to that there was a similar analysis of the unloading of bird seed done by those in the bird house and the machine room but not those in the packing room.
7. The finding was that these loads were up to 30 tonnes, took three or four hours to unload and those working in the bird house had to do more than those who manned the machines. The finding was that the Respondents' evidence that this work is physically demanding was not challenged.
8. There is then reference to the working environment and the Respondents argument that the working environment was less favourable for the comparators. There is also reference to the temperature being lower. There is also reference to the obligation of those in the bird house and machine room but not the Applicants to empty the rubbish trolleys which were on wheels.
9. So far as equal value is concerned, it appears that charts were prepared for the use of the Tribunal and they analysed the arguments between the parties in relation to that. The Tribunal then set out the relevant legal elements and turned to dealing with first the issues which they set out and then came to their conclusions beginning at paragraph 23.
10. At paragraph 25 the Chairman turned to the differences in the tasks done by the two groups and identified them as the loading of delivery vans, the unloading of container lorries and the moving out of rubbish bins and tipping these into the trade waste skip, the loading of vehicles twice a day, referring again to the number of times and the length of time it took and the number of people engaged on each exercise.
11. They found that, even with the help of the conveyor belt, this requires considerable physical effort. They then turned to the unloading of container lorries four times a week, with seasonal variation, and they described that as a task "which lasts about four hours a time and is particularly arduous" and "it is likely to happen about once or twice a week in winter and once a fortnight in summer". They then dealt with moving the bins to the yard and filling the trade waste skip.
12. So far as the loading of the company's delivery vehicle and the unloading of delivery lorries was concerned, the Tribunal observed that this took place outside the building and in their words "was a particularly unpleasant task in cold, wet or very hot weather". They then effectively eliminated the wheeling of the bins from consideration of matters of difference but then went on to say:

26 "We have reached the conclusion that the loading of delivery vans and unloading of container lorries, which was carried out by the comparators and not by the Applicants, are differences of practical importance in relation to the terms and conditions of employment of the parties. The frequency with which these tasks had to be carried out and their nature, referred to above, are material. Looking at the tasks carried out by the Applicants, we have found nothing that counter-balances these important differences."

13. The Employment Tribunal then deal with the submission that the sex discrimination legislation effectively precluded them (the Tribunal) from taking physical demands of work into account as a factor of difference and indeed they point out that the approach of the employers themselves in this case was not in itself discriminatory in the sense that they only employed men for that particular work as a matter of policy.
14. At paragraph 29 they found:

"…that the loading and unloading of vehicles objectively required the use of greater physical effort, in adverse conditions including cold days in winter and, no doubt, hot days in summer."

15. The possibility of the looking at the Equal Pay Act 1970 and Sex Discrimination Act 1975 harmoniously was referred to and their conclusion was that they had found nothing that was based upon the sex of the employees concerned.
16. The Employment Tribunal then eliminated some other differences that had been asserted by the Respondents from being relevant to questions of whether or not there was like work and they concluded at paragraph 32 as follows:

32 "For the reasons stated above, we have concluded that the Applicants were not employed on like work with their comparators. We are satisfied that the material differences in the work of each referred to above are of practical importance and genuinely account for the additional remuneration."

Whether or not the phrase "material differences" really goes to this particular test it is quite clear in our view that in reality the Tribunal were making a finding of fact that there was no like work.

17. A number of criticisms are made of that finding in the Notice of Appeal but we are bound to say we do not discern any arguable error of law whatsoever. The factor of loading and unloading of delivery vehicles is a fact, it seems to us, that the Tribunal were entitled to take into account.
18. We acknowledge the point made by Mr Bourne this work may only represent one and a half hours or so a week on a particular calculation of the evidence and he submits that that makes it a perverse decision. Where to draw the line assessing the proportion of time spent on a factor that is alleged to make work not "like work" is of course a matter of degree and there can come a stage where, although a particular job may have a particular feature that makes it different from that of an Applicant's work, the time spent upon it is so small as to make it of minimal significance overall. We have come to the conclusion that an hour and a half a week of heavy and arduous work in the way that it was found to be by the Tribunal, cannot be said to be so minimal and was a factor, although obviously at the lower end of the scale, which entitled the Tribunal to come to the conclusion they reached and we can find no arguable error of law in that.
19. Reason 2 acknowledges that alleged other material differences were discounted.
20. The third reason alleges that the Tribunal were required to have regard to the frequency that these differences occurred and goes on to allege in paragraph 4 that the Tribunal found that there was no evidence as to frequency. That is not correct and on our reading of the decision whilst the Tribunal found there were no detailed calculations or anything of that kind, they did make findings, presumably on the evidence, of a more general kind.
21. In Reason 5 the same point is raised that based upon the proposition there was no evidence of frequency the Tribunal could not come to the conclusion that the tasks were material but we find that the Tribunal did come to conclusions as to frequency which we have already referred to in this decision.
22. Reason 6 is simply a further argument restating the arguments previously made.
23. Reason 7 comes to the proposition that the Tribunal were precluded from relying upon a difference which related to the greater use of physical effort because of the Sex Discrimination Act 1975.
24. That is then echoed in Reason 9 in putting forward the fact that it was exclusively male. Then reasons 10 and 11 are set out which I quote because we find that they appear to be contradictory:

(10) "In the circumstances, the Tribunal should have called upon the Respondent to explain the difference because there was a prima facie case that the difference was the difference of sex."

But in (11) it is said:

(11) "The greater physical effort required in the loading and unloading of vehicles, which the Tribunal had identified was itself a discriminatory criterion which is excluded from being a genuine occupational qualification for a job by section 7 (2) (a) of the Sex Discrimination Act 1975 ("the SDA")."

25. But if under the Sex Discrimination Act 1975 the physical effort is excluded from being a genuine occupational qualification it must follow that the argument is that women should be allowed to do that heavier job of unloading and if that is so it must follow that the approach is not discriminatory. It is a job that was open to women, on all the evidence we have heard, and there is no evidence, it seems to us, and no arguable point of law that when looking at effort and in relation to like work a Tribunal is precluded from taking into account work which is heavy, even though it fact tends to attract male employees rather than female. That is really, it seems to us, to turn discrimination on its head; for it would indeed be discriminatory to exclude women from the work that is contended for. That does not seem to us to be a factor.
26. Mr Bourne has submitted that there is a point of law in this but it seems to us it is an issue of fact. There may be cases in which a department which has men may involve some lifting work which men take very much in their stride as a minor part of their work which if done by women who are of less power and less strength would be found more difficult by them but in that sort of case, of course, the conclusion may well be that there is like work.
27. That, however, is not this case and we see no basis in that argument as an argument of law. For that reason we reject that proposition that any criterion which cannot be a qualification for a particular job under the Sex Discrimination Act 1975 cannot therefore be used to justify a difference in pay under the Equal Pay Act 1970, indeed quite the opposite, for otherwise one would be implying, as we have said, that women were precluded from that work in a discriminatory way.
28. Accordingly we find that there is no arguable point of law in relation to the findings of the Employment Tribunal as to like work.
29. We come to their findings in relation to work of equal value and effectively the Employment Tribunal reiterated the factual elements upon which they had relied in relation to the claim of like work saying in paragraph 33:

33 "Perhaps inevitably the differences highlighted are those that have been considered in the Tribunal's deliberations in respect of the claims for "like work"."

30. They then deal, again, with the argument that was put forward by Mr Bourne that the Employment Tribunal should not have taken account in relation to the relative value of work the need be physical strength or stamina because it is specifically disallowed by section 7 of the 1975 Act.
31. The illustration that we have earlier given in the section on like work probably applies better, if not instead, really in this context. As a matter of fact, those arguments may arise in the evaluation of work in particular cases but they are not facts, it seems to us, that can be erected as a point of law.
32. The Employment Tribunal then make a finding that the physical effort is a material factor, as they describe it. They conclude in the following words:

37 "In all the circumstances, we have concluded that there is a material difference between the Applicants' case and the comparators', that being primarily the loading and unloading requirements undertaken by the comparators prior to 31 October 2001, and that the additional hourly rate paid to the comparators of 26 pence is a variation between the Applicants' contracts and the comparators' contracts which is genuinely due to a material factor which is not the difference of sex."

33. In relation to the grounds of appeal and the reasons on equal value under a contract the point is made that the Tribunal relied on the same factual distinctions in relation to both like work and work of equal value, and goes on in ground 2 to incorporate the arguments on appeal. If that is so, we reject them for the same reasons as we have given in relation to the like work claim.
34. The issue of the extent to which agency workers could have been relied on and the fact that they received the same level of pay so that the Appellants' pay was raised to that of the comparators, was referred to in Reason 3, whereas, in Reason 4 it is pointed out that there were similarities in the agents pay and it concludes that there was clear evidence that there was no justification for a difference in pay. We disagree. There was clear evidence that there was, in relation to agency workers, no difference in pay, but that does not mean to say that there was no justification for a difference, it was simply that agency payment workers got the same.
35. Mr Thomas considered reducing the pay of comparators once they had relinquished to agency workers that part of their work which was used to justify the difference in pay. It is suggested there was no evidence that such a course had not been considered when the Tribunal went on to speculate as to why such a course might have industrial relations consequences. It seems to us those two propositions can sit side by side and there is no arguable ground of appeal there.
36. However, we do find that there are two arguable grounds in this appeal and those are those confined to paragraphs 8 and 9 of the proposed amended Notice of Appeal. Because it is therefore to go forward to a full hearing we propose to say nothing more about it.
37. The matter will be listed for a day in Category C, automatic directions will apply and the matter will proceed for hearing on the amended grounds 8 and 9 under the heading of the "equal value" aspect of the claim only. It is important to make that clear in the Order because there is also a section 8 and 9 in the "like work" claim.