United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER OLDHAM (Of Counsel) Instructed by: Messrs Borneo Linnells Solicitors Dixon House 77-97 Harpur Street Bedford MK40 2SY


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about race discrimination, equal pay and a tribunal's refusal to allow an adjournment. The only question we identify as reasonably arguable is: must a genuine material factor justifying a difference in pay under the Equal Pay Act, or a difference in treatment under the Race Relations Act 1976, be in the mind of the person setting the pay scale at the relevant time? The judgment represents the views of all three members who pre-read the papers and skeleton argument and the proposed amended Grounds of Appeal presented to us today. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sent with reserved reasons to the parties on 24 June 2003. The Tribunal sat at Ashford Kent under the chairmanship of Miss V G Wallis for one day and considered its judgment for another day in Chambers. The Applicant represented herself. The Respondent was represented by a Solicitor.
3. The Applicant claimed that she was entitled to an equality clause in her contract of employment giving her equal pay for she was performing "like work" within the meaning of Section 1 of the Equal Pay Act with what turned out to be three comparators. She also claimed that, as an Australian national, she was being treated less favourably contrary to the Race Relations Act 1976 than others on the grounds of race, in this case nationality. The Respondent contended that the rate of pay had nothing to do with her nationality and that the claim for parity should be dismissed. The Tribunal decided that the claim of race discrimination was presented outside the time limit which is three months but that it was just and equitable to extend time. It held that the Respondent did not discriminate on the ground of the Applicant's nationality and that the Applicant had not made out her case of a breach of the equality clause.
4. Another claim under the Employment Rights Act was dismissed and is not pursued on appeal. Against the substantive decisions the Applicant appeals. In the course of argument this morning by Mr Peter Oldham of Counsel recently instructed on the Applicant's behalf presented a skeleton argument supporting proposed amended grounds of appeal. At the outset we gave permission for these grounds to be used in substitution for those presented hitherto.

Facts

5. The Applicant was employed by the Respondent which runs a school in Folkstone. The Applicant has dual nationality, Australian and British. She is undoubtedly well qualified for she has two degrees and is studying also for a Masters Degree. She also has a post-graduate qualification in teaching in Australia. The Applicant responded to a job advertisement for a mathematics teacher which is her specialist subject and, following her successful interview on the telephone while she was in Australia, began teaching on 1 September 2001 on a contract which lasted precisely one year.
6. The method of payment was determined by the head teacher according to what her appreciation was of the relevant statutory background. These are regulations which we have not seen but which are referred to by the Tribunal as emanating from the Department for Education Teacher Training Agency. The Applicant was awarded 8 out of 9 points by which her salary would be calculated. Anyone who had substantial experience in teaching in a recognised school in the United Kingdom could rise to, but not above, 9 points. The Applicant claimed that her background entitled her to 9 points and as such she was being unfavourably treated, compared with three male teachers who were not Australian and who were paid according to that scale.
7. The claim was therefore based upon Section 1 of the Equal Pay Act which relates to "like work" and Section 1 of the Race Relations Act which deals with less favourable treatment. The head teacher Miss Spear, from whom the Tribunal heard evidence, appears to have been under a misapprehension as to the different treatment in an English school of teachers who have qualifications meeting certain standards (generally a good degree) and those who obtained their qualifications abroad. The way in which this reflects in pay is that time spent teaching outside of one of the designated educational establishments - broadly speaking a local authority school - does not automatically qualify for a point but may be taken into account where there is an assessment of experience, in which case a period three years qualifies for 1 point.
8. In this scheme there is discretion. The Applicant was awarded 2 points for her degree which was correct and 6 points for her teaching experience which as a matter of fact was incorrect since it was not in a local education authority in the UK. Nevertheless, Miss Spear appears to have been under the impression that she was so entitled. The Applicant claims that with a further eight years of, broadly speaking, relevant management experience the Applicant should have been awarded by discretion one more point taking her to the top of the scale at 9 points.

The relevant comparators

9. The Tribunal decided that the relevant comparators were Mr Alpin, Mr Hulse and Mr Nesbit.

Mr Alpin

10. The Tribunal decided that there was an apt comparison to be made with Mr Alpin but the allocation of the points to him and to the Applicant was correct.
11. In doing so it appears to have decided that the decision of Miss Spear was invested with a rationalisation about the distinction between qualified and unqualified teachers which later became apparent but was not apparent at the time. We hold that it is reasonably arguable for the purpose of sending this matter to a full hearing that a genuine material factor justifying a difference in pay under the Equal Pay Act must be one in the mind of the person setting the pay scale at the relevant time and thus the comparison with Mr Alpin will go forward. Similarly, the claim in respect of the comparison with him under the Race Relations Act is reasonably arguable and this too will go to a full hearing.
12. The Tribunal next considered whether a hypothetical comparison existed - See paragraph 30. No argument has been directed to us about the hypothetical comparison and whether or not that is a relevant issue for the purposes of the Equal Pay Act. This matter is currently awaiting judgment before the European Court of Justice in Allonby v Accrington [2001] ICR 1189 CA. Without resolving that matter, the Tribunal decided by reference to a direct comparison with Mr Alpin that the equality clause did not operate in his case.

Mr Hulse

13. Turning then to the second comparator, the Tribunal found for the purposes of the Equal Pay Act that Mr Hulse was not an appropriate comparator. That was because his responsibilities in developing a new course meant that he not only carried out teaching duties comparable to those of the Applicant but also significantly different duties. The Tribunal thus had in mind Section 1(4) of the Act which provides as follows:

"(4) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences."

14. Mr Oldham on behalf of the Applicant accepts that the finding under the Equal Pay Act is one of fact. He does, however, seek to investigate further the evidence which was before the Employment Tribunal and further evidence; and for this purpose he prayed in aid an Application for Review headed 'Justification of Request' which has already been made by the Applicant herself. The basis of the request now advanced before us is an as yet un-drafted further amendment to the Amended Grounds of Appeal, to deal with what is said to be the evidence of a Miss Downy who has since the hearing given further information to the Applicant about the operation of the points system. On the basis of that material, it is contended that Mr Hulse should remain as a valid comparator for the purposes of an appeal. We reject that basis as being too vague to be advanced. We have no text of any further amendment but anyway we are satisfied that this matter was put before the Employment Tribunal as an application for a review. A review took place and the Tribunal refused to change its decision. There was no appeal against that refusal. Thus the proper forum for ventilating this new matter of fact was the Employment Tribunal and we see no reason for allowing this matter to be opened on appeal. As it presently stands it is not contended that the decision by the Tribunal in relation to the Equal Pay Act was perverse. The ground of appeal relating to Mr Hulse under the Equal Pay Act is dismissed.
15. That leaves open the question under Race Relations Act. The Tribunal did not specifically decide the issue under that Act. The relevant provision is Section 3(4) which says:

"(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section l 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

16. No significant argument has been addressed to us about the relationship between the two sets of statutory phrases. We must do the best we can. We hold that the words 'the relevant circumstances are the same or not materially different' in Section 3(4) of the 1976 Act have the same effect as the words 'of the same or a broadly similar nature' in Section 1(4) of the 1970 Act as amended. Thus the finding for the purposes of the Equal Pay Act that Mr Hulse was not an appropriate comparator will cover the same territory as a finding under the Race Relations Act. We acknowledge Mr Oldham's argument that the Tribunal has not expressly descended into a decision under the Race Relation Act on that point but by reason of our approach to the statutory provisions, the Tribunal's decision would have been the same. The complaint of a failure properly to compare Mr Hulse under the Race Relations Act is dismissed.

Mr Nesbitt

17. We turn then to the claim in relation to Mr Nesbitt. It is now apparent that he was on 7 points and not 9 although the Applicant could be forgiven, on reading paragraph 27 of the Reasons, for thinking that he too was part of the group of comparisons. Mr Oldham, having taken his client's instructions, has made it clear that Mr Nesbitt is paid at Point 7 so far as she can tell and she takes that point no further.
18. In his case however there was a payment of a removal expense for him to move from Scotland to Folkestone. The Applicant complains that the Tribunal failed to imply an equality clause in relation to her travelling expenses from Australia to Folkestone. As to this, The Tribunal noted that Mr Nesbitt was an appropriate comparator but that his removal expenses were met pursuant to a genuine material difference in treatment under section 1. The payment to him was not based on gender but was based upon a material factor which was that he had requested help with payments because of his financial situation. Mr Oldham, following exchanges with us, does not pursue the Equal Pay Act aspect of the Applicant's complaint but fairly, we think, makes the submission that the Tribunal has not decided the issue in relation to the Race Relations Act, that is: 'Was the Applicant treated less favourably on the ground of her nationality than the Respondent treated Mr Nesbitt in respect of his removal expenses?' We will use the procedure available to us by the Court of Appeal as we have interpreted its judgment in English v Emery Reimbold [2003] IRLR 700 in order to refer this matter to the Tribunal so that it may record its decision and its reasons in respect of the claim of less favourable treatment of removal expenses by the Applicant in comparison with Mr Nesbitt under the Race Relations Act. Further directions on this point can be given if sought.

The Employment Tribunal procedure

19. The Applicant has further contended that matters should be reopened in respect of the fairness of the procedure before the Employment Tribunal. We say reopened for the Applicant in her application for review made it clear to the Tribunal that she was at a disadvantage at the hearing because of the late adduction of material by the Respondent. She pointed to the fact that the day before the substantive hearing she sought an adjournment in order that the material could be collected. We have looked most carefully at this (again as yet un-drafted) further amendment to the Amended Grounds of Appeal. We are very conscious that the Applicant was acting in person against a solicitor for the Respondent. We have read most carefully the Applicant's own written arguments which indicate to us an understanding, if we may say with respect, of a very high level of the issues of fact and law in this case for she cites the law and the authorities.
20. The decision on whether or not to grant an adjournment is a matter within the case management duties and discretion of a Tribunal, rarely to be interfered with unless it has gone wrong in principle in making the decision one way or the other. We have an insight into the Tribunal's thinking in paragraphs 10-13 of its Reasons for it has considered whether there should be further adjournments and whether it were proper to continue with the case.
21. The Applicant did not apply on the day for a further adjournment and the allegations that the Tribunal committed a material irregularity does not seem to have occurred following the directions given by Her Honour Judge Wakefield in Chambers on 24 October 2003. The Tribunal plainly had in mind the difficulties the Applicant was suggesting were in her way, heard both the evidence of herself and Miss Spear, the principal actors in this drama, and made decisions on the material which was put before it. The procedure before the Employment Appeal Tribunal is for an Affidavit to be produced by the Applicant. None has been produced which might go before the Chairman and Members if necessary for them to give their views, together with the Respondent. In our judgment this is not a case which cries out for that procedure to be adopted in the circumstances in which it has arisen before us this morning and we will not allow a further amendment of the further Amended Grounds of Appeal to include such an allegation.

Directions

22. All grounds of appeal are dismissed except that the point identified in paragraph 1 above will go to a full hearing. Time Estimate - half a day, Category C. The provisions for cross-appeal and Respondent's answer within the normal time. The Employment Tribunal will be asked to record its decision identified in paragraph 15 above.