At the Tribunal | |
On 11 June 2003 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MR A E R MANNERS
THE HEALTH COMMISSIONER |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MR NICHOLAS PAINES QC And MR CLIVE SHELDON (Of Counsel) Instructed by: The Treasurer Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS |
For the Respondent | MR ROBIN ALLEN QC And MS NICOLA BRAGARIZA (Of Counsel) Instructed by: Equal Opportunities Commission Arndale House Arndale Centre Manchester M4 3EQ |
HIS HONOUR JUDGE PETER CLARK
Background
(1) the difference in their starting salaries,
(2) the payment of the Recruitment and Retention allowance to Ms Moulder and not to the Applicant,
(3) the difference in performance-related pay, following their annual appraisal box markings, with effect from 1 August 2000.
The Employment Tribunal decision
Equal Pay
"29. The Respondent accepts that the Applicant and his chosen comparator, Ms Christine Moulder, were employed on like work. The only issue in relation to the claim under the Equal Pay Act concerns the existence of a genuine material factor falling within section 1(3) of that Act. The Tribunal is asked to take note of the decisions of the House of Lords in Strathclyde Regional Council v Wallis [1998] ICR 205; Glasgow City Council v Marshall [2000] IRLR 272; and Tyldesley v TML Plastics Ltd [1996] IRLR 395. They establish that a factor is genuine if it is relied on, is not based on sex and is not a sham, even if it subsequently appears that it is factually incorrect. It has been submitted by the Respondent that the question is whether the factor" caused a difference". In the view of the Tribunal, however, this does not mean that a factor which is genuine is necessarily material. It is for the Tribunal to decide whether the factor is sufficient to support the difference. In that respect the Tribunal proposes to rely on the decision in Bilka-Kaufhaus Gmb H v Laber Vaughn Hartz [1987] ICR 110 which requires objective justification in respect of materiality. In the Danfoss Case [1991] ICR 74, and in Enderby v Frenche (sic) Health Authority [1994] ICR 112 the ECJ and House of Lords respectively decided that materiality could not be deduced from a factor which lacked transparency. In other words, the factor must permit the employee to see why the difference arose. In Rayney v Greater Glasgow Health Board [1987] ICR 129 Lord Keith in the House of Lords said the factor must be "significant and relevant". In that case market forces (which, for instance, might in the present case refer to the difficulty of recruiting or retaining staff) were to be considered relevant. But the fact that a factor is relevant and potentially material does not mean that it is material unless it is actually of significance in explaining the difference. This does not mean that its consequence must unavoidably lead to a difference. It must be shown, however, that there is a real difference that is relied upon to produce the pay differential. If the evidence reveals no difference the mere belief in such a difference may be genuine but is not material."
The domestic jurisprudence
"First, that the proferred 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 … a "material" difference, that is, a significant and relevant difference, between the woman's case and the man's case."
Later, at 203B, Lord Nicholls added:
"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."
The European Jurisprudence
"As the Court has already held in case 43/75 Defrenne II [1976] ECR 455, paragraph 12, that principle [Article 119 (now 141)] that the same work must be remunerated in the same way, whether it is performed by a man or a woman] which is a particular expression of the general principal of equality which prohibits comparable situations from being treated differently unless the difference is objectively justified, forms part of the foundations of the Community."
It is at this point that this Tribunal finds itself divided.
"… the differences in treatment prohibited by Article 119 are exclusively those based in the difference in sex of the employees concerned."
We paraphrase that observation to mean, using the expression to be found in the domestic cases, that the variation in pay is tainted by sex.
"Are Article 119 (now Article 141) of the Treaty and Article 1 of [the Equal Treatment] Directive 75/117/EEC to be interpreted as meaning that the fixing of different pay may be objectively justified by circumstances which can be established only ex post facto, such as in particular a specific employee's work performance?"
The present case
Racial discrimination
"It is true that these are subjective judgments reached by two different sets of people and it seems likely that Mr Lawson, the reporting officer in the Applicant's case was certainly well disposed towards him. His view seems to be that the Applicant will certainly achieve a box 2 in the next round. Ms Bainbridge … was also well disposed to Ms Moulder. There is no reason, therefore, to think that the differing assessments were arrived at on the basis of different attitudes to the two members of staff concerned."
"The Tribunal is unanimous in its conclusion that the Applicant did suffer racial discrimination in relation to the appraisal rating. We have indicated that we think this appraisal rating has not been shown to be justified and the Respondent has therefore failed to prove any other reason for the different grading. In our view there is nothing to suggest that had he been white he would have received the lower grading. We consider the inference is justified that the Applicant was assessed more rigorously and his obvious merits played down because of his racial origins."
"In our view there is nothing to suggest that had he been white he would have received the lower grading."
Disposal