United Kingdom Employment Appeal Tribunal

 

 

 

APPEARANCES

 

 

 

 

For the Appellants	Mrs K McGill, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB
For the 1st Respondents                 For the 2nd Respondents         For the 3rd Respondents	Ms A Jones, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ       No Appearance Nor Representation       Mr P Nicholls, Barrister Instructed by- Klegal Solicitors 102 Dorset Rise LONDON EC4Y 8AE

 

 


 


LORD JOHNSTON:

 

1. This case is concerned by an application by a lecturer at Falkirk College of Further and Higher Education to the Employment Tribunal, claiming relief under both the equal pay legislation and the sex discrimination legislation, concerning the terms and conditions of her employment. The appeal to this Tribunal arises from the fact that the original application was directed against the, to use a neutral phrase, "company" which supplies the applicant's services to the College, namely, Protocol Professional, and the Scottish Ministers in their capacity as pension trustees in the State system. Although the IT1 dated 24 September 2002 mentions the current appellants, the Falkirk College, they were not initially a party. By letter dated 3 December 2002 those acting for the applicant applied to the Employment Tribunal to sist the now appellants as a party to the process. This application was granted and a subsequent application for review refused by the Tribunal (see letter 28 February 2003).
2. The case raises very complicated questions currently focussed in the case of Allonby v Accrington & Rossendale College & Ors reported in the Court of Appeal [2001] IRLR 364 which inter alia remitted two questions to the European Court of Justice. The present position of that case is that the Advocate General has issued her advice but the case has gone no further at the present time although that undoubtedly will do so.
3. Mrs McGill, appearing for the appellants, maintained that upon the averments there was no possible basis upon which any relief could be granted against her clients, particularly, since there was no averment that they were the relevant employers. Furthermore, she submitted, that on any basis of comparison there was more than one source in respect of which the claim might arise and that was defeated by the fact that the person against whom relief was sought must have felt some control over the facts causing their potential liability.
4. Both Ms Jones and Mr Nicholls, appearing for the respondents who appeared, the Scottish Ministers declining to appear at this hearing, focussed on the fact that the test had to be much higher even than Mrs McGill had put it, namely, that no possible basis existed whereby in the future a claim might lie against the College. They both pointed to various parts of both Allonby and the Advocate General's opinion, which suggested there were real issues of direct and indirect liability both in respect of equal pay and discrimination. Furthermore, it was possible that notwithstanding the fact that it would appear, on one view, that the lecturers' services had been franchised to Protocol, there was still a question as to whether the fundamental employer might not be the College. In any event, as Ms Jones put it, the matter will probably be expanded once the decision in Allonby reaches the Court of Appeal for a second time and the ECJ has issued its opinion.
5. It is sufficient for us at this point in time to accept the position that it is far too early to determine whether or not there may be a potential liability imposed upon the College, whether, under the equal pay position, or, if the claim is expanded, under the direct or indirect discrimination claim. The case is presently sisted and, by leaving the College in the process, very little will be required of them for the time being, in any event.
6. In any event, in addition, we observe if, at the end of the day, it is shown that the College should not have been involved in the process, they may have a potential remedy in respect of their claim for expenses. On the other hand, if they are let out at this stage, the prejudice or potential prejudice to the applicant in losing a potential claim, would be enormous.
7. In these circumstances we are entirely satisfied that the Regional Chairman properly exercised his discretion both in respect of the original application and the refusal of a review.
8. This appeal is therefore refused and remitted back to the Employment Tribunal in its sisted state with the College as a party.