United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ANDREW BURNS (of Counsel) Instructed by: Messrs Wortley Byers Solicitors Regency House 38 Ingrave Road Brentwood Essex CM15 8AX
For the Respondents	MR MICHAEL FORD (of Counsel) Instructed by: Messrs Thompsons Solicitors Great Russell Street London WC1B 3LW


 


MR JUSTICE HOLLAND

1. This is an appeal from a Decision of an Employment Tribunal sitting at Stratford. The Decision, together with Extended Reasons being sent to the parties on 28 November 2000. The subject is equal pay.
2. The matter has had a long forensic history. The IT1 initiating a joint complaint by nine female employees (eight cleaner packers and a supervisor) against their employers, is dated 10 March 1997. This led to a hearing of the complaint before a Tribunal. The Decision of that Tribunal reflected its powers, as provided for by section 2A(1) Equal Pay Act 1970 and that reads:

"Where on a complaint or reference made to an [employment tribunal] under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal [may either-

(a) proceed to determine that question; or

(b) unless it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned, require a member of the panel of independent experts to prepare a report with respect to that question;

and if it requires the preparation of a report under paragraph (b) of this subsection, it shall not determine that question unless it has received the report.]"

3. It was in the light of that provision that that Tribunal, by way of a Decision sent to the parties on 5 March 1998 ruled:

"The unanimous decision of the Tribunal is that there are no reasonable grounds for determining that the work of the Applicants is of equal value to that of their comparators. Consequently, these Originating Applications are not adjourned for the preparation of an expert's report but are dismissed as they have no reasonable prospect of success in respect of all the complaints."

4. The Applicants appealed from that Decision to this Tribunal. By way of a Decision reported as Wood & Others -v- William Ball Ltd [2000] ICR 277 the appeal was allowed. It is germane to read part of the headnote:

"Held, allowing the appeal, that the amended section 2A(1) of the Equal Pay Act 1970, in paragraph (a), gave an industrial tribunal the option of determining the equal value question itself as an alternative to requiring an independent expert's report; that it was contemplated that the tribunal would first decide whether an expert's report was to be obtained by the tribunal itself, and, if it decided that it would not require a report to be prepared because there were no reasons or grounds for determining that the work was of equal value, the tribunal might none the less have to go on to determine the case on the basis of the evidence presented to it; that a finding by the tribunal that there was no reasonable prospect of the applicants showing that their work was of equal value did not put an end to the case, but permitted the parties to adduce expert evidence in support of their claim; and that the industrial tribunal had moved from the first stage, deciding whether to commission a report, to the second stage, determining the matter itself, without giving the parties an opportunity to adduce expert evidence if they wished to do so, and the case would be remitted to another tribunal to determine the equal value claim under section 2A(1)(a)"

5. In the event, pursuant to their Decision, the matter came back before a freshly constituted Employment Tribunal. The supervisor Applicant withdrew her complaints in the course of the hearing: that left the issue as between the eight cleaner packers and their employers. The unanimous Decision of the Tribunal was that:

"…the work of the Applicants was of equal value to the comparators, the picker packers, and the variation in their pay was not genuinely due to a material factor other than the difference of sex. The complaints will be listed for a remedies hearing."

This time it is the employers who appeal; they appeal from that Decision.

6. For that Tribunal, the essential issue of fact was as to whether the cleaner packers, all women, were employed in work of a value equal to that of the better paid picker packers, all men. A further issue was as to whether, given the equal value contended for, the failure to accord equal pay reflected the Applicants' sex. Those issues, having been the subject of evidence received over no less than three days, were resolved in the Applicants' favour.
7. Now, by way of appeal, Mr Burns takes what in essence are two points: the first such relates to the manner in which the Tribunal acted upon the expert evidence that was adduced before it with a view to assisting comparative analysis of the respective jobs. Two experts were called; the first such, Mr Bennett, was called on behalf of the Applicants. As to Mr Bennett, the Tribunal, at paragraph 35, said as follows:

"Mr Bennett prepared a report dated 29 April 2000 on behalf of the Applicants. At that time he had 16 years experience of training and advising on job evaluation, pay systems and equal pay issues. He is one of the authors of "Pay Check - a Practical Guide to Auditing Pay Systems for Sex Bias" published in 1999 by TMS Consultants."

As paragraph 37, the Tribunal then said:

"Mr Bennett adopted a system called Value Check to determine the relative value of the jobs by reference to specific factors. He gave a score of three where the demands of one job were greater than the other; a score of two where the demands were equal; and a score of one where the demands of one job were less than the other. The Tribunal attaches to this decision as Appendix 1 the description of the factors taken from the Guide."

In the event, Mr Bennett had so utilised his system as to arrive at a computation that was favourable to the Applicants.

8. The other expert called was Mr Woodside; he was called on behalf of the employers. He did not produce his own computation, but contented himself with criticising Mr Bennett's methodology. In particular, he complained that the scoring system adopted by Mr Bennett was too crude. He advocated in place of a range 1 - 3, a range of 0 - 5. His contention was that a larger range would give greater scope for effective comparative evaluation, and he sought to demonstrate that by taking Mr Bennett's computation and substituting for Mr Bennett's 1 - 3 range, his own assessment based on a 0 - 5 range. Through that means he demonstrated that the result could be different.
9. The Tribunal was understandably wary of facile adoption of Mr Bennett's arguably simplistic approach to the resolution of this first issue in the case. At paragraph 46, it noted:

"The Tribunal was placed in the difficulty that Mr Bennett's scheme was the only scheme which had been placed before it. Mr Woodside did not put forward an alternative scheme with different factors. He adapted Mr Bennett's by adding a weighting score."

Then, at paragraphs 48 and 49, the Tribunal said as follows:

"48 ……The Tribunal had reservations about the pseudo-scientific nature of these schemes generally, and considered that they depended heavily upon the subjective assessment of the assessor. However, the Tribunal considered that it had to use some system, and Mr Bennett's system was the only one made available to it. The Tribunal thought it was dangerous to try to superimpose another expert's weighting system on top of a system which was not designed for it, and without a proper analysis and description of the way in which the weighting system would work. A thorough Job Evaluation Scheme would be a much less crude method of evaluating different jobs. But this had not been done, and the Tribunal had to do its best with the material which it had before it.

49. Both experts experienced the considerable disadvantage of not being able to see the cleaner packers at work because their job had more or less disappeared with the advent of more advanced machinery. Both parties accused the other's expert of being biased in favour of their clients, and the Tribunal was inclined to agree that neither expert was truly independent or objective, and treated their conclusions with caution."

10. In the event, the Tribunal then proceeded to apply Mr Bennett's Pay Check formula, with its 1 - 3 range of responses, but amended his figures as and when it preferred the views of Mr Woodside, having regard to the evidence that had been put before it. In the overall result, at paragraph 51, it concluded with respect to this first issue:

"The total score was Applicants: 32 and Comparators: 32. Although numerical scoring was only a guide, the Tribunal was satisfied that this accurately reflected the true position, namely, that these jobs were of equal value."

11. Mr Burns seeks to persuade us that the Tribunal's judgment at this point could be condemned as perverse, that is, it was such that no reasonable Tribunal, correctly applying the law and reflecting upon the evidence, could have made. He has wholly failed to make out this case. We put the matter rhetorically: how could it conceivably be perverse to act upon the only constructive approach tendered, not least when it is manifest that the Tribunal did not abdicate its own judgment, but applied such at individual stages, and again, in the round? True, it did not adopt Mr Woodside's gradations, but that failure reflected a conscious decision, in the light of the evidence put before it, that conscious decision being in paragraph 48, as already recited in this judgment. The matter can be taken shortly: we can find not the slightest indication that the judgment can be faulted, let alone it could be said to be perverse. True it is that another Tribunal may have arrived at a different conclusion, but that is in the nature of things and reflects the potential for different judgments arriving from different juries. Mr Burns further seeks to complain about the value judgments made under various individual heads. We cannot condemn such without making our own; we are in no position to do this, and we do not do so.
12. Mr Burns' further major point relates to the second of the issues that confronted this Tribunal. It contends that the Tribunal erred in law in finding that the failure to accord equal pay, notwithstanding equal value, reflected sexual discrimination. It is helpful at this stage of this judgment to go immediately to the guidance given by the House of Lords in Glasgow City Council -v- Marshall [2000] ICR 196 at 202. There, Lord Nicholls of Birkenhead said as follows:

"The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably, than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden, the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine and not a sham or pretence. Second that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a "material" factor, that is, a significant and relevant factor. Third, that the reason is not "the difference of sex". This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or, in a case within section1(2)(c), may be a "material" difference, that is, a significant and relevant difference, between the woman's case and the man's case.

When section 1 is analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a "good" reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity."

Mr Ford, for the Respondents to this appeal, points out that by reference to Strathclyde Regional Council -v- Wallace [1998] ICR 205 and 212, that the reason proffered by the employer must not in itself be sexually discriminatory, the test being objective.

13. In the event, the Appellants, through their Works Director, Mr Ball, did advance explanations with a view to fulfilling the employer's obligation. The explanations were, in summary, these. First, that greater responsibility was expected of picker packers, thus justifying a higher rate of pay. Second, that the work of the picker packer was not suitable for women because of the heavy lifting said to be involved, and finally, he drew attention to the fact that a collective agreement, arrived at between employers and the union, provided for payment by reference to three grades, the second such being packers, and the third such being cleaner packers, as quasi-labourers.
14. Turning then to the way in which the Tribunal dealt with this, this appears from paragraph 52 of the Extended Reasons.

"The Respondent relied upon the collective agreement which categorised workers in the furniture making industry into (1) Journeymen; (2) Packers and (3) Labourers and Porters. There was a descending scale of pay rates from (1) to (3). The Tribunal concluded, looking at the archaic language of the agreement, that these categories were introduced long before the advent of equal pay legislation, both in domestic law and European Convention on Human Rights, and without any consideration of the question whether or not the jobs were of equal value, though different in nature. It was very likely that, historically, warehouse packers had a status higher than that of the semi-skilled and unskilled workers in the factory, which was reflected in an award of higher pay. But the Tribunal was concerned by the evidence that showed that packers were, in practice, exclusively men, and concluded that the job of warehouse packer was a traditional male preserve. The justification given by Mr Ball, namely, that the work was not suitable for women because of the heavy lifting, did not stand up to scrutiny. The cleaner packers were doing heavy lifting as well. The Tribunal concluded that the collective agreement was tainted with sex discrimination because for historic reasons, it maintained higher pay rates to warehouse packers, which was a job traditionally reserved for men. Reliance upon the collective agreement for the disparity in pay was not, therefore, due to a material factor which was not the difference of sex. The difference of sex was inextricably linked with the terms of, and the application of, the collective agreement."

Mr Burns challenges this part of the judgment as inadequate. He points out that it only partially recites the contentions of Mr Ball so that, in particular, it does not deal with the contention that greater responsibility was expected of picker packers, that in its turn justifying a higher rate of pay. He further complains that the Tribunal failed properly to assess to what extent the Appellants were, as it were, locked into an arguably discriminatory pay structure by the collective agreement.

15. In response, Mr Ford says that the first two reasons given by Mr Ball were effectively rejected by the earlier findings of the Tribunal, when assessing the matter of equal value. They respectively added nothing to the debate at this stage. Further, he points out that the collective agreement itself, in terms, gave scope for specific variations that might be required to provide, for example, equal pay.
16. For our part, having considered the submissions of Mr Burns and having given careful consideration to the approach of this Tribunal, we are quite unable to say that at this stage the Tribunal in any way misdirected itself, so that that further final conclusion can be challenged. For our part, we can see no reason to dissent from the content of paragraph 52, and it is in those circumstances that this appeal falls to be dismissed.