United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK SUTTON (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST
For the Respondent	MR SINCLAIR CRAMSIE (of Counsel) Instructed by: Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W1S 3NL


 


HIS HONOUR JUDGE D M LEVY QC

1. This is an appeal by Mr I Cretney and Mr D Larmond ("the Appellant") from a decision of a Tribunal sitting at London (South) on 3 December 2002 and in chambers on 9 December 2002. The issue before the Tribunal was whether the Appellants' claims of equal pay and unlawful deductions from wages failed or succeeded. The Tribunal found that both failed. The appeal in fact is only on the issue as to whether the Appellants' claim for equal pay should have failed.
2. The decision was promulgated on 10 February 2003. There was a prompt appeal from that judgment on 20 March 2003. The matter came before Judge Burke QC on the sift system who, following a decision under Rule 3, determined that the matter should be set down for a full hearing. At the Employment Tribunal a trade union representative appeared for the Appellants and Ms Kibby, the Head of Human Resources, appeared for the Respondent. Today we have the benefit of Mr Sutton appearing at short notice for the Appellant and Mr Cramsie appearing for the Respondent.
3. It is right to say that the issues in the appeal are not very apparent from the IT1 or the IT3. It is clear that both the Appellants and the comparator mentioned in the Extended Reasons had been employed by the Respondent for some years. It is not clear from when the equal pay application was said to start. Mr Sutton submits it starts from the date of employment of each of the Appellants, although the date of employment of one of them does not appear on his IT1. Mr Cramsie says that from the four corners of the decision we can see that the relevant date is a date when, after the redundancy exercise commenced, the Appellants started effectively doing the same work as the comparator, Ms Pandya. That was at a time some other members of the staff of the department which was to be reduced in the redundancy exercise had resigned.
4. It is common ground that the approach to be taken by a Tribunal faced with this claim is that which was set out by Lord Nicholls in his speech in Glasgow City Council v Marshall & Others [2000] IRLR 222 and in particular in the paragraph of the judgment in paragraph 18 where Lord Nicholls sets out the scheme of the Equal Pay Act 1970. He said this:

18 "The scheme of the Act is that a rebuttable presumption of sex discrimination arises once a 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 on must be the cause of the disparity. In this regard, and in this sense, the factor must be a 'material' factor, that is, 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 s.1(2)(c), may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case."

5. Mr Cramsie has endeavoured to persuade us that within the four corners of the Extended Reasons we can find the four steps which Lord Nicholls said must be analysed and analysed favourably to the Respondent. Mr Sutton has submitted to us that we cannot be sure of that at all, given the way the Extended Reasons are phrased.
6. Because there may be different findings of fact when the matter is remitted, as we think it must be, to a Tribunal, we think the less we say about the findings made by the Tribunal the better. It would seem to us that the matter has to be remitted because not only does the Tribunal not refer to that case, or indeed to any of the others which were cited to us in the course of the proceedings, namely: Rainey v Greater Glasgow Health Board [1987] IRLR 26, a House of Lords decision; Tyldesley v TML Plastics Ltd [1996] IRLR 395, a decision of the EAT in a panel headed by the President then Mummery J; Strathclyde Regional Council v Wallace [1998] IRLR 146, a further decision of the House of Lords; and the European authority of Brunnhofer v Bank Der Österreichischen Postsparkasse AG [2001] IRLR 571, particularly at paragraph 79.
7. It is far from clear to us as we say that the proper exercise was done by the Tribunal in rejecting the Appellant's claim and it seems to us that the matter has to go back for a further hearing where the questions must be answered which were raised by Lord Nicholls in the paragraph of his speech to which we have referred.
8. In the circumstances we will remit this. This appeal succeeds to the extent which we have stated.