United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Mrs Allan and Others and Mrs Degnan and Others	MR STEFAN CROSS (Solicitor) Messrs Stefan Cross Solicitors Oystershell Lane Newcastle upon Tyne NE4 5QS
For the Council of Newcastle upon Tyne	MR JOHN BOWERS QC and MR SEAMUS SWEENEY (of Counsel) Instructed by: V Dodds Head of Legal Services Civic Centre Newcastle upon Tyne NE99 2BN
For the Redcar and Cleveland Borough Council	MR JOHN BOWERS QC (of Counsel) Instructed by: Messrs Short Richardson & Forth Solicitors 4 Mosley Street Newcastle upon Tyne NE1 1DE

SUMMARY

1. Complaint of unequal pay between male and female employees: compensation for non-economic loss (and/or aggravated or exemplary damages) not recoverable pursuant to the Equal Pay Act 1970 and, as pleaded, not pursuant to the Sex Discrimination Act 1975.

2. Issue as to whether claims by certain employees out of time where they had recently changed jobs within the same employer, remitted to the Employment Tribunal to give further consideration as to whether there was a fresh contract or a variation of terms.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of two appeals, ordered by Judge Serota QC to be heard together, from interim decisions, by differently constituted Employment Tribunals, both sitting at Newcastle upon Tyne, dealing with the resolution of certain preliminary issues in on-going cases relating to equal pay claims. In one, Allan and Others v Newcastle City Council and Others, the Tribunal, chaired by Mr Rennie ("the Rennie Tribunal"), after a hearing on
   17 August 2004 in Reasons delivered on 10 September 2004, made findings in favour of the Applicants, which the Respondent Council appeals; and in the other, Degnan and others v Redcar and Cleveland Borough Council, the Respondent Council succeeded before a Tribunal chaired by Mr Hargrove ("the Hargrove Tribunal") on a number of issues, after a hearing on 27 and 28 May and 2 June 2004, as set out in Reasons delivered on 12 July 2004, and the Applicants appeal. In Allen there are some 34 scheduled Applicants, and in Degnan some 117. In both cases, the Applicants were represented by Mr Stefan Cross, their solicitor. In Allan, the Respondent Newcastle Council was represented by Mr John Bowers QC, who has also appeared before us, leading Mr Seamus Sweeney. In Degnan, Mr John Cavanagh QC represented the Respondent Redcar Council below, and settled its skeleton argument for the purposes of resisting the appeal, but Mr Bowers QC has handled the appeal, doubling up his role on behalf of both Respondent Councils. In Allan, there are other parties joined as Respondents before the Tribunal, whose position has not been relevant to this appeal, but in Degnan the Council is the sole Respondent. In each case, a specimen Originating Application was addressed for the purpose of all contentions on appeal, it being accepted that, although there were some differences between the various applications, i.e. as between the 34 and as between the 117, they were immaterial so far as concerns this appeal: in Allan, that of
   Mrs Allan was selected and in Degnan, that of Mrs Camfield.
2. In both cases the resolution of these, and other, preliminary issues were intended to clarify, identify and streamline what will, in due course, be substantive claims by female manual workers employed by the Respondent Councils (largely if not wholly as care workers), claiming parity or comparability with male manual workers in other occupations rated as equivalent.
3. There were two issues ostensibly contentious in the Allan appeal, which did not in the event remain so. Mr Cross accepted that the claim for unlawful deductions from earnings, contained in paragraph 37 of the Allan Originating Application, was not being pursued and should be dismissed. It was also quickly accepted that, notwithstanding the apparent conclusion favourable to him by the Employment Tribunal at paragraph 9 of its Judgment, the Applicants were not making, and/or consented to the dismissal of, an assertion that the so-called Phase One Single Status Agreement ("POSSA") was void for lack of informed consent, as set out in paragraph 18 of the Allan Originating Application. The claim that POSSA was unlawful and void pursuant to s77 of the Sex Discrimination Act 1975 (the "SDA"), as amended by the Sex Discrimination Act 1986, in paragraph 5 of the Originating Application, the arguability of which the Respondent Council had originally challenged but, on this appeal, no longer challenges, remains for trial.
4. The common issue in the two appeals was (by reference to an agreed list of issues in the Allan case) whether an award for injury to feelings, or an award of aggravated/exemplary damages ("non-economic loss"), can be made in equal pay claims brought under the Equal Pay Act 1970 (the "EPA"). The Rennie Tribunal found that such awards arguably could be made: the Hargrove Tribunal found that they could not. There was then also an issue in Allan as to whether, if such awards could not be made within the EPA, the pleaded case enabled a claim to be made for such awards against the Respondent Council by way of a complaint of direct sex discrimination. The Rennie Tribunal found that such claim could be pursued. The Hargrove Tribunal concluded, and it does not appear that Mr Cross in that case very vigorously, if at all, argued the contrary, that (paragraphs 7.4 and 7.4(3) of the Decision) no complaints separate and distinct from the equal pay claim could be identified by reference to the SDA. In any event, on this appeal, it is only in the Allan case that this alternative fallback has been put forward at all, and we shall return to it below. For completeness, it should be stated that it appears that similar claims by reference to equal pay legislation have been brought in relation to some 800 or so other employees in similar proceedings, launched by other solicitors on their behalf, in which any claim for non-economic loss, whether by way of claims for injury to feelings, exemplary or aggravated damages, by reference to the EPA or sex discrimination, has been expressly abandoned.
5. In Degnan a quite distinct issue was raised, relating to the positions of a number of specific Applicants, seven before the Employment Tribunal and four before us, Mrs Camfield, Mrs Marlow, Mrs Barnett and Mrs Ions, in respect of which an issue was raised as to whether their EPA claims were in part out of time. So far as those four Appellants are concerned, this issue was resolved against them, and is now the subject of appeal ("the time point").

EPA

6. We turn to the issue in both appeals, as to whether non-economic loss is recoverable in equal pay claims brought under the EPA. The conclusion by the Hargrove Tribunal, which came first in time, that non-economic loss is not recoverable, is contained in paragraph 7.4 of its Decision. The subsequent conclusion of the Rennie Tribunal, that they "were not persuaded at this juncture that the ruling in Degnan … is necessarily correct" such that they were not prepared to strike out the claims for non-economic loss, are contained in paragraph 7 of that Decision. The two sides' respective contentions were once again fully and ably rehearsed before us, both in written submissions and orally by Mr Cross and Mr Bowers QC, but we were left in no doubt that the Hargrove Tribunal's Decision is right and not the Rennie Tribunal's Decision. We set out our reasoning below.
7. There is a distinct absence from the Equal Pay Act of any provision for recovery of non-economic loss. This falls to be expressly contrasted with the provisions of the SDA, the Race Relations Act 1976 (the "RRA") and the Disability Discrimination Act 1995 (the "DDA"). Section 66(4) of the SDA provides:

"For the avoidance of doubt, it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."

8. The equivalent provisions are in s57(4) of the RRA and s8(4) of the DDA. There is no such provision in the EPA. A similar contrast falls to be made between these sections of the SDA, RRA and DDA, and s123 of the Employment Rights Act 1996 ("ERA"), which was definitively construed by the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] ICR 1052 as not permitting recovery of non-economic loss by way of compensation for unfair dismissal: see per Lord Steyn in paragraph 16 of his speech at 1060, in reference to s123(1):

"Read in context, the word "loss" has a plain meaning which excludes non-economic loss. It does not cover injury to feelings. It is to be contrasted with section 66(4) of the [SDA], section 57(4) of the [RRA] and section 8(4) of the [DDA] which all expressly provide for compensation for injury to feelings."

9. Reference could of course be made, though Mr Cross did not do so expressly, to the fact that, in those sections, the statutory provision is "for the avoidance of doubt". In our judgment, however, this does not affect the position, but even can be said to re-emphasise it. The claim for compensation by way of the SDA 1975, RRA and DDA is by way of recovery for a statutory
   

tort: see by way of example s66(1) of the SDA 1975:

"(1) A claim by any person … that another person … has committed an act of discrimination … may be made the subject of civil proceedings in like manner as any other claim in tort …"

10. A claim under the EPA is however clearly a claim in contract. The cause of action is created by the statutory implication into the contract of employment of an "equality clause", as defined in s1(2) of the EPA. Section 1(1) provides:

"If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."

11. It is contravention of that term which is enabled to be the subject of a complaint to an employment Tribunal by s2(1) of the EPA. Whereas in tort, claims for injury to feelings are routinely recoverable, such is only very exceptionally the case in respect of claims for breach of contract. The seminal passage in this regard is that in the judgment of Bingham LJ in Watts v Morrow [1991] 1 WLR 1421 at 1445 F-G:

"A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party … But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of cases, it would be defective."

12. This general principle, reiterated in Farley v Skinner (No 2) [2002] 2 AC 732, has, of course, been applied in particular in relation to claims for wrongful dismissal in Addis v Gramophone Co Ltd [1909] AC 488 and Johnson v Unisys [2001] ICR 480. In the same way as there is the restriction of the recoverability of non-economic loss by way of what might be called ordinary damages for breach of contract, and the same would inevitably apply to aggravated damages, there is also no example to which we have been referred of the concept of exemplary damages being extended beyond the ambit of tort. The Rennie Tribunal referred, in paragraph 7 of its Decision, to Kuddus v Chief Constable of Leicestershire [2001] 2 WLR 1789:

"It is not the case that [exemplary damages] are not awardable, at least under the 1975 Act. That is as a result of Kuddus's case. The circumstances in which such an award may be made are extremely limited and an award will be very rare. That is not to say that it is not a possibility in these cases."

Kuddus was not in fact a case of discrimination under the SDA. The issue was whether a claim for exemplary damages against the defendant Chief Officer of Police, on the ground of vicarious liability for a constable's misfeasance in public office, should be struck out. It was concluded that such an award might be made. However the only relevance of that case would be to establish that claims for exemplary damages can be made in tort on a wider basis than had previously been thought. Although the claim in Kuddus was not, therefore, by reference to the SDA, it could found an argument for recoverability in respect of such a statutory tort. But it does not assist at all in relation to claims for breach of contract.

13. The claim for equal pay is, in our judgment, a financial claim, just as is, in the light of Dunnachie, the claim for compensation for unfair dismissal. The provisions of the SDA 1975 themselves exclude and extract claims under the EPA from the ambit of claims for discrimination against employees, as provided by s6(2):

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) in the way he affords her access to opportunities for provision, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

It is expressly provided by s6(6) that:

"Subsection 2 does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment."

The exclusive ambit of the EPA in relation to the comparability of terms of employment as between men and women is emphasised further by s8(4) and (5) of the SDA 1975.

14. Mr Cross relied upon two submissions. First, he pointed to the terms of s2(1) of the EPA, which emphasises the contractual nature of the claim under the EPA:

"Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an [employment] tribunal."

He refers to the phraseology "arrears of remuneration or damages in respect of the contravention", and submits that this suggests that damages for non-economic loss may thus be intended to be recoverable.

15. The Rennie Tribunal considered that this was arguable, in paragraph 7 of its Decision:

"The reference in s2(1) of [EPA] to "arrears of remuneration or damages" may contemplate the possibility of damages which are not the equivalent of pay. We did not consider it necessary or advisable for us to decide this issue."

The Hargrove Tribunal was, in paragraph 7.4(2) of its Decision, not so persuaded. We are satisfied, for the reasons set out above, that the expressly contractual claim under the EPA is a financial one only, and that the damages referred to, as compared with arrears of remuneration, being a claim in debt, are, as Mr Bowers QC submits, intended to relate to a claim for damages in respect of the quantification of the loss of value of benefits not provided.

16. Mr Cross's main submission, which seems to have weighed with the Rennie Tribunal (paragraph 7), but not with the Hargrove Tribunal (paragraph 7.4), is what the latter Tribunal described as "an anomaly in the difference [of] treatment of equal pay claims in the EPA from that of all other forms of sex discrimination in the Sex Discrimination Act". Unlike the position in respect of race or disability discrimination, claims of discrimination by way of inequality of pay as between sexes are hived off and separately dealt with. As to the former, in response to a question from the Bench, as to whether there has been such a case (which was not within our experience), the diligence of Mr Bowers QC turned up, after the hearing, an example (but only one example) of a case where it was argued, as it happens unsuccessfully on the facts, that there was discrimination on racial grounds against locally-recruited managers, by paying them substantially less than managers seconded from Japan (Wakeman v Quick Corporation [1999] IRLR 424). But it is plain that such a case, where the discrimination relates only to a difference in pay, is rare. The EPA is however expressly intended to deal with the position as between the sexes, and such cases are far from rare.
17. Mr Cross urges the importance of treating the EPA and the SDA as part of our code to deal with unlawful sex discrimination. He refers to the words of Lord Browne-Wilkinson in Strathclyde Regional Council v Wallace [1998] IRLR 146 at para 18:

"The cases establish that the [EPA] has to be construed so far as possible to work harmoniously both with the [SDA] and Article 119. All three sources of law are part of a code dealing with unlawful sex discrimination."

That was part of the House of Lords' reasoning for its interpretation of the so-called genuine material difference defence in equal pay comparisons, provided by s1(3) of the EPA:

"An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex …."

There is no doubt that, particularly in such context, the question of discrimination must be approached similarly in respect of the two statutes.

18. However, that does not mean that the two statutes must be construed identically so far as the availability of remedies is concerned. Lord Browne-Wilkinson expressly refers, in the passage from his speech quoted above, as being the foundation for his proposition, to the words of Lord Denning MR in E Coomes (Holdings) Ltd v Shields [1978] IRLR 263 at paragraph 26, where he says:

"The English statutes are plainly designed so as to implement the Treaty of Rome and the Directives issued by the Council. They are the [SDA], to which is scheduled the [EPA], as amended. All came into force on 29.12.75. They must all be taken together. But the task of construing them is like fitting together a jigsaw puzzle. The pieces are all jumbled up together, into boxes."

19. The reality is, Mr Bowers QC submits, and we accept, that this code consists, primarily, of these two strands, the EPA, dealing with the financial implications of inequality of pay and benefits, and the SDA, dealing with equal treatment. Thus there is also at the European level the Equal Pay Directive (Council Directive 75/117/EEC of 10 February 1975) "on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women" and the Equal Treatment Directive (Council Directive 76/207/EEC of 9 February 1976) "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions". Mr Cross points out that the latter Directive is amended by European Parliament and Council Directive 2002/73, transposition of which Directive is not required until 5 October 2005, until which date the unamended provisions of the earlier Directive remain effective. Even when fully in force, the new Directive will not replace the Equal Pay Directive, which will continue to govern the application of the principle of equal pay for men and women (see preamble 16 of the 2002 Directive). Article 3(1)(c) of the Equal Treatment Directive, once amended by the 2002 Directive, will emphasise that:

"application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex … in relation to … employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC"

and Article 6(2) will provide that the:

"Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of the discrimination contrary to Article 3, in a way which is dissuasive and proportionate to the damage suffered".

20. We are satisfied that, unless and until something new is introduced into our national legal system, whether as a result of the about-to-be-amended Article 6(2) of the Equal Treatment Directive or otherwise, there is nothing to affect the present structure, and the present construction and operation, of the two statutes. The fact that, as the Hargrove Tribunal points out in paragraph 7.4(2) of its Decision, "no such argument in respect of injury to feelings has yet been presented to the higher courts or to the ECJ" (or, we interpose, so far as we know to any employment tribunal prior to this) "29 years after [the EPA] came into force" does not prevent Mr Cross being the pioneer of such a result. But we are satisfied that the settled construction of the statute is both correct and sensible. We note that, upon the amendment of the SDA in 1999 to provide for discrimination on the grounds of gender reassignment by the additions of ss2A and 7A, such new anti-discriminatory measures resulted in the express incorporation in s6 of a new subsection (8), disapplying the provisions of s6(6), and thus identifying and recapitulating the effect of the exclusion of inequalities of pay on the grounds of sex (but not on the grounds of gender reassignment) from the provisions of the SDA.
21. Inequalities of pay on grounds of sex, with their financial consequences, are dealt with by the carefully-structured provisions of the EPA, with its assessment and, by reference to the equality clause, where appropriate readjustment of the financial position under a contract. Compensation for non-economic loss, aggravated and/or exemplary damages are not recoverable in claims under the EPA, and, insofar as the Applicants in either Allan or Degnan so claim, such claims must be struck out, and we reject the appeal in Degnan and allow it in Allan accordingly.

SDA

22. That is not to say that there is no remedy for direct sex discrimination if the paying of unequal remuneration contrary to the EPA is accompanied by unlawful discrimination which is not, by virtue of s6(6) of the SDA 1975, within the exclusive jurisdiction of the EPA. As set out in paragraph 4 above, it is not suggested before us that any such case is, or was, pleaded in Degnan. However, so far as concerns Allan, this appears to have been before the Rennie Tribunal Mr Cross's main submission, or at least it was the submission with which the Rennie Tribunal dealt first.
23. It should be said that the decision of the Rennie Tribunal appears to have been vitiated by two misunderstandings, or at any rate by two propositions neither of which have been supported before us by Mr Cross:

23.1 The Rennie Tribunal appears to have concluded, in paragraph 6 of its Decision, that "the Applicants' main allegation of sex discrimination is based upon" POSSA. This Agreement, however, was only entered into effective from 2 February 2004, and the inequalities of pay alleged are asserted to have long ante-dated that Agreement: and indeed all or most of the Originating Applications were issued within days of that Agreement.

23.2 It may be that the Tribunal found it more difficult to analyse the position relating to POSSA, because the Respondent Council was below, but is no longer before us, challenging the arguability of the separate claim made by the Applicants in Allan, referred to in paragraph 3 above, that POSSA is void or unenforceable by virtue of s77 of the SDA, as supplemented by the Sex Discrimination Act 1986. POSSA is, or was, a Collective Agreement, not intended to be legally enforceable. Section 77 of the SDA provides:

"(1) A term of a contract is void where –

(a) its inclusion renders the making of the contract unlawful by virtue of this Act, or

(b) it is included in furtherance of an act rendered unlawful by this Act, or

(c) it provides for the doing of an act which would be rendered by this Act.

(2) Subsection (1) does not apply to a term the inclusion of which constitutes, or is in furtherance of, or provides for, unlawful discrimination against a party to the contract, but the term shall be unenforceable against that party.

(3) A term in a contract which purports to exclude or limit any provision of this Act or the Equal Pay Act 1970 is unenforceable by any person in whose favour the term would operate apart from this subsection."

Section 6 of the Sex Discrimination Act 1986 includes in the ambit of s77 of the SDA collective agreements not intended to be legally enforceable, and provides by s6(3) that:

"For the purposes of the said s77 a term … shall be deemed to provide the doing of an act which would be rendered unlawful by the 1975 Act if –

(a) it provides for the inclusion in any contract of employment of any term which by virtue of an equality clause would fall either to be modified or to be supplemented by an additional term; and

(b) that clause would not be prevented from operating in relation to that contract by s1(3) of the Equal Pay Act 1970 (material factors justifying discrimination)."

The Rennie Tribunal appears to have concluded, while ruling against Mr Bowers QC's submission made to it as to the non-viability of the s77 claim itself, that the inclusion of the challenge to POSSA created an arguable claim for compensation for sex discrimination by reference to it. Quite apart from the misunderstanding by the Rennie Tribunal as to the centrality of the issue in relation to POSSA, the existence of a claim that such Agreement was void and unenforceable does not found a claim for compensation for direct sex discrimination. It is plain from the terms of s77, and Mr Cross did not pursue an argument to the contrary, that such claim does not found any award of compensation, but simply leads to the avoidance or unenforceability of the impugned agreement.

24. Against that background, we encouraged Mr Cross to go through the exercise of searching Mrs Allan's Originating Application to identify where there is a plea of unfavourable treatment within s1(1)(a) of the SDA, and within a short period of time he engagingly confessed himself persuaded by Mr Bowers QC, that there was no such case. We are similarly so satisfied.
25. Examining Mrs Allan's Originating Application:

25.1 Paragraph 5 recites the entry into of POSSA effective from 2 February 2004, and the contention that such Agreement is unlawful and void, pursuant to s77. By paragraph 8, it is asserted that POSSA "in itself is sex discrimination as the fact is that the number of women to be placed at the bottom of the scale is significantly higher than the number of men being placed at the top of the scale". Apart from the fact that this would appear simply to amount to particulars of the s77 claim, and that it relates to an Agreement only effected very shortly prior to the Originating Application, no less favourable treatment is alleged, other than by reference to the inequality of pay. All the particulars in the following paragraphs will of course be material on the issue of the genuine material difference defence under s1(3) of EPA.

25.2 Paragraphs 16 and 17 read as follows:

"16. At the end of the agreement signed by the Second Third and Fourth Respondents" [the case was dismissed below against the Second Respondent: the Third and Fourth Respondents are Union officials], "there is a following provision:

"Statement of Intent: All parties recognise the right of each employee to pursue claims under relevant legislation, however UNISON and GMB commit to not using the terms of this single status implementation agreement to initiate equal pay claims"

17. The Applicant contends that this is a clear recognition by the parties to the agreement that the Applicants were entitled to equal pay and this was a clear agreement to ensure that the Applicants were not given their rights and even to deny them assistance in pursuing their legal entitlements despite the fact that they are paid up union members. The Applicants believe that the unions, GMB and UNISON, have never, and would never, agree to such an arrangement in respect of the legal rights of male employees. The Applicant contends that this is direct sex discrimination. The Applicants seek aggravated and exemplary damages in respect of this conspiracy."

The Rennie Tribunal records in paragraph 7 its view that "the fact that, as Mr Bowers put it, the Tribunal "has no jurisdiction in relation to conspiracy" would be immaterial if that conspiracy amounted to sex discrimination". However, as Mr Cross in essence accepted, the conspiracy, if conspiracy there be, pleaded in paragraph 17, insofar as it can be understood from such particulars as are given, is plainly one to contravene s12(3) of the SDA, which provides:

"(3) It is unlawful for an organisation to which this section applies, in the case of a woman who is a member of the organisation, to discriminate against her –

(a) in the way it affords her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or …

(c) by subjecting her to any other detriment."

25.3 Further particulars of the case against the Third and Fourth Respondents (and/or the Unions whom they represent) are then given in the following paragraphs through
to 25. Mr Cross confirmed in the course of argument that it was not suggested by reference to paragraph 18 of the Originating Application that any allegation of failure to advise the Applicants was being made against the Respondent Council (an allegation which would in any event be difficult, if not impossible, to sustain in the light of Crossley v Faithful & Gould Holdings Ltd [2004] IRLR 377), but rather against the Unions.

26. Only two other matters remain in respect of the balance of the pleading, over and above the equal pay claim and the case made against the Third and Fourth Respondents as Union officials:

26.1 Paragraph 26 reads as follows:

"The First and Second Respondents have known for many years that their pay arrangements have discriminated against their female members of staff. The second Respondent, as Chair of the Personnel committee, has been a member of the National Employers Organisation for many years and would be well aware of the discussions and advice by the local government management board, now the Employers Organisation … At no time during this period did any of the Respondents advise the female members of the workforce of their entitlements and the discriminatory pay arrangements which they continued to operate."

Particularly given the confirmation by Mr Cross that no "duty to advise" case is being made against the Respondent Council, but in any event, this is simply a reiteration of the equal pay claim, with possibly an anticipation of a rebuttal of the genuine material difference defence.

26.2 Paragraph 36 is found in a part of the pleading which is specifically directed only at the Third and Fourth Respondents, and it reads:

"As a result of [POSSA], the Second, Third and Fourth Respondents have aided and abetted an unlawful act for which the first Respondents are liable under s41 and for which the Second, Third and Fourth Respondents are personally liable under s42 of the 1975 Act."

This is the only way that ss41 and 42 of the SDA feature at all in the pleaded case. The suggestion is that it is the Respondent Council which is the principal discriminator, aided and abetted by the Union representatives. The only case that is made is by reference to the execution of POSSA, which is said to be void or unenforceable by virtue of s77, the cause of action for which carries no separate claim for compensation, as set out above.

27. It is clear, and Mr Cross was right to recognise, that the present case, as pleaded, discloses no case against the Respondent Council, other than by reference to the equal pay claim and the claim under s77, that there is no separate case of direct sex discrimination brought against the Respondent Council, and that, consequently, no claim for non-economic loss or for exemplary or aggravated damages in respect of direct sex discrimination can be pursued in the Allan case, as it is not in the Degnan case.

The Time Point

28. The four Appellants referred to in paragraph 5 above in Degnan changed positions within the Respondent Council more than six months before their Originating Applications were issued, and the Respondent Council successfully argued before the Hargrove Tribunal that those Appellants were consequently out of time to make a claim, save in respect of their most recent positions. Section 2(4) of the EPA reads as follows:

"No determination may be made by an employment tribunal … on a complaint under subsection (1) above … unless the proceedings are instituted on or before the qualifying date determined in accordance with section 2ZA below."

29. Section 2ZA(2) is a definition clause, in relation to such qualifying date, and begins by defining a "concealment case" and a "disability case", neither of which are relevant for our purposes. It then continues:

""Stable employment case" means a case where the proceedings relate to a period during which a stable employment relationship subsists between the woman and the employer, notwithstanding that the period includes any time after the ending of a contract of employment when no further contract of employment is in force.

"Standard Case" means a case which is not –

(a) a stable employment case

(b) a concealment case

(c) a disability case…"

30. The limitation periods are then provided materially as follows:

"(3) In a standard case, the qualifying date is the date falling 6 months after the last day on which the woman was employed in the employment.

(4) In a case which is a stable employment case (but not also a concealment or a disability case or both), the qualifying date is the date falling 6 months after the day on which the stable employment relationship ended."

31. The relevant histories of the four Applicants for the purposes of this appeal are as follows:

31.1 Yvonne Camfield was employed from 1 November 1993 to 1 July 2001 as a
Senior Home Care Assistant. We do not have, at any rate in the bundle before us, a copy of her contract or particulars of employment in such capacity. By a letter which is in the bundle, dated 29 June 2001, she was appointed temporarily to undertake the duties of Home Care Manager (job-share): this continued until 1 December 2002. As from 2 December 2002 she was appointed under a document headed "Notification of Offer/Variation of Appointment: "Terms of Employment" (which we shall call a "NOVA") dated 20 November 2002 as a Domiciliary Care Co-Ordinator. Her Originating Application was issued on 3 September 2003, namely more than six months after both 1 July 2001 and 1 December 2002.

31.2 Susan Marlow was employed by a contract which again is not available from
1 July 1993 to 28 July 2002 as a Senior Home Care Assistant. She signed a NOVA on 27 July 2002, whereby she was seconded as Financial Services Officer as from
29 July 2002. This continued until 1 December 2002, whereafter as from
2 December 2002, on the basis of a further NOVA dated 19 November 2002, she became a Domiciliary Care Co-Ordinator. Her Originating Application was issued on 2 September 2003.

31.3 Carol Barnett was from 30 November 1992 to 1 December 2002 a Senior Home Care Assistant: her contract of employment is also not available. On the basis of a NOVA dated 18 November 2002, she was appointed, as from 2 December 2002, Domiciliary Care Co-Ordinator. Her Application was also issued on 2 September 2003.

31.4 Laura Ions was, according to paragraph 6.15 of the Decision, employed from
October 1985 as a Care Assistant: her contract of employment is not available. On
28 September 2001 she signed a NOVA providing that, with date of commencement 28 August 2001, she became Social Worker – Health and Disabilities.

32. The findings of fact are made by the Hargrove Tribunal in paragraphs 6.5 to 6.9 with regard to the background history, whereby in 1997 a National Agreement on pay and conditions, known as the Green Book, was introduced in place of what had previously been two different Books, regulating the terms and conditions of white collar and blue collar local authority employees, namely the old White Book and the old Purple Book. The findings of fact in relation to the relevant individual Applicants are at paragraphs 6.10, 6.12, 6.14 and 6.15. They had no breaks in the employment relationships between themselves and the Respondent Council back to the mid-1980s. The issue was, however, whether they were employed in the same employment, or whether, in one or more case, a contract of employment was terminated and replaced by a fresh contract.
33. The first question addressed by the Tribunal was whether this was a stable employment case as above defined. The Tribunal recorded the submissions, and preferred those of
    Mr Cavanagh QC, namely that the essential elements required to qualify for such a case were (paragraph 6.18 of the Decision):

"1. A succession of short term contracts

2. Of the same kind

3. With significant gaps in between."

34. The starting point is the report of the European Court's decision in Preston v Wolverhampton Health Care NHS Trust [2000] IRLR 506. The Report for the Hearing at 510 records, in relation to the relevant appellants, that they "worked regularly, but periodically or intermittently, for the same employer, with each period of work technically being under a separate contract of employment but with each contract containing the same terms and with the employment in total being relevant for pension purposes (but for it being part time work)".
35. Against that background, the judgment of the Court was as follows:

"68. Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of the limitation period, the fact nevertheless remains that, in the case of successive short-term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by Article 119 of the council treaty excessively difficult.

69. Where, however, there is a stable relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies, it is possible to fix a precise starting point for the limitation period.

70. There is no reason why that starting point should not be fixed as the date on which the sequence of such contracts has been interrupted, through the absence of one or more of the features that characterise the stable employment relationship of that kind, either because the periodicity of such contract has been broken or because the new contract does not relate the same employment as that to which the same pension scheme applies. …

72. The answer to the third question must therefore be that Community law precludes a procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme … to be brought within 6 months of the end of each contract of employment to which the claim relates where there has been a stable employment relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies."

It is to this passage which Lord Slynn refers in the subsequent House of Lords decision in Preston No 2 [2001] ICR 217 at 228.

36. Mr Cavanagh QC's submission, recorded at paragraph 6.18 of the Decision, was that "this principle was never intended to cover changes in contractual terms without a temporal gap in employment or to two or more successive long-term contracts. It was his client's (Mrs Bunyan's) difficulty (in the Preston No 3 litigation [in which Mr Cavanagh appeared for the employees]) in establishing that a case fell within those criteria which caused her to fail." This referred to the conclusion of Judge McMullen QC in Preston No 3 [2004] ICR 993, basing himself upon the earlier Preston decisions, at 1040-1, paragraphs 119-20. He concludes at paragraph 119 that "one of the features of a stable employment relationship is "same employment" which can be construed in different ways". He refers to the quotation from the Report for the Hearing in the Court of Justice, which we have set out in paragraph 34 above, and also recites the submissions of the applicants to the Court of Justice at 520, referring to the hurdle which would be placed if no concession were made for the intermittent nature of their contracts, where they are "employed under a series of identical, or substantially similar, contracts". He concluded in paragraph 120, differentiating the position of Mrs Bunyan who "moved to a wholly new position in terms which are very significantly different" by accepting the submission of Counsel for the Secretary of State that:

"The basis upon which the Court of Justice was considering the issue of stable employment relationship was the existence of a series of contracts containing the same or substantially similar terms."

37. It is not simply in relation to the particular decision relating to Mrs Bunyan that the reasoning of Judge McMullen QC is worked through. He gives considerable guidance as to the meaning of the concept of a stable employment relationship:

37.1 At para 113:

"In ordinary language any permanent job can be described as a stable employment relationship. But in the context in which it is coined by the Court of Justice, it is there to rescue employees who do not have a permanent job. The rescue operation is limited to cases satisfying the conditions defined by the Court of Justice and adopted by the House of Lords."

37.2 At paragraph 115, he reviews, by reference to paragraph 70 of the Court of Justice's judgment, cited in paragraph 35 above, the

"features that characterise a stable employment relationship". He concludes that there is a requirement of a "succession of short-term contracts" which he interprets "to mean three or more, for the existence of two such contracts is not usually described as a sequence or succession of such contracts".

37.3 In particular, in response to Mr Cavanagh QC's submissions to him on behalf of the employees, Judge McMullen QC addresses, in paragraph 118, whether it is wrong to suggest that "the stable employment relationship ceases when the terms of the contract, or the work done, alter radically; that is, when a succession of short-term contracts is superseded by a permanent contract". He concludes that

"in the context of the analysis of the Court of Justice's judgment as applied by the House of Lords, the submission fails because feature (1) [the succession of short-term contracts] is missing. The succession of short-term contracts ceases, or is interrupted, when a new permanent contract is negotiated. It is not apt to describe a succession of short term contracts and a permanent contract as a succession of short-term contracts. The succession is broken, and the nature of the contract changes from short-term to permanent … Thirdly, the cases may also founder under feature (3) as not being in "the same employment"."

38. The Hargrove Tribunal was clearly bound, if not by the House of Lords and the European Court of Justice, at any rate by the Employment Appeal Tribunal's interpretation of those decisions, as fully addressed by Judge McMullen, who has considerable experience, not only of the Preston case itself, but of all the similar cases based upon it, as to which he is the assigned judge at the Employment Appeal Tribunal. We see no reason to differ from his very careful evaluation and analysis. It should be said, however, that there is an obiter remark by Smith J, giving the lead judgment in Young v National Power plc [2001] ICR 328, to which case reference will be made below. She concluded that the applicant in that case had one contract of employment running from 1969 until 1996, and that she did not have a new contract of employment when her work changed in 1991 or 1995. Hence she was not out of time in relation to the earlier positions. Smith J, however, said, obiter, at paragraph 19:

"Had we thought that it was arguable that Mrs Young had had a series of discrete contracts, with a new contract beginning every time National Power moved her to new work, we would have had to consider the Court of Justice's view in Preston … However, that does not arise."

39. On the basis that the four Appellants' cases do not fall for consideration as being a stable employment case, we turn to the consideration of their position as a standard case. Mr Cross submits that the Appellants were in the same employment throughout, and that the contracts did not terminate, but were varied. Mr Bowers submits, and the Tribunal found, that in each case their latest employment was under separate contracts, their earlier contracts having been terminated. It is plain that it is not sufficient that the job specifications of the employees changed from time to time, because, if their equal pay claims are in time, there is nothing to prevent them from referring to more than one comparator insofar as their job content changed over a period. Nevertheless, the importance of there being a correct job evaluation and a comparison with a relevant job inevitably underlies the time or jurisdictional bar where more than six months has expired since termination of a particular employment.
40. The relevant authorities are in small compass:

40.1 The first is Marriott v Oxford & District Co-operative Society (No 2) [1971] QB 186 CA, a redundancy case. The issue as to entitlement to redundancy depended upon whether, when an employee had agreed to continue in employment at a reduced wage and status, this amounted to a termination of the contract of employment, or a consensual variation. This was held to be a termination by the employer of the contract of employment, so that the employee was entitled to a redundancy payment.

40.2 Hogg v Dover College [1990] ICR 39 was an unfair dismissal case, where the issue was whether in a case where, again, an employee's status and salary were reduced, and he continued to work at the college, this amounted to a variation of the contract, by affirmation of what would otherwise have been the employer's repudiation, or a constructive dismissal followed by employment under a totally different contract. Again, the employee succeeded on the basis that there was a termination, by constructive dismissal.

40.3 Both these two decisions, perhaps not surprisingly, led to recovery of compensation for an employee, and neither were equal pay cases. The first equal pay case was
HQ Service Children's Education (MOD) v Davitt [1999] ICR 978. The issue was not quite on point, because, although it was a six-month time limit question, it revolved around the fact that the applicant was not required to work after September 1997, but her notice period did not expire until March 1998. Section 2(4) of the EPA at that time provided that no claim could be made "if she has not been employed in the employment within the six months preceding the date of the reference". Judge Clark concluded at 983G-H that:

"In our judgment "employed in the employment" means employed under a contract of employment in which the equality clause relied upon for the purposes of the claim applies. It is on termination of that employment that time under s2(4) begins to run. An employee may be off sick, on holiday or simply not required to attend work. Until the contract of employment is materially varied or terminated the employee remains employed in the employment."

Mr Cavanagh QC submitted, at the Tribunal, that there was relevance to this test of materially varied or terminated. Mr Cross submitted (as recorded at paragraph at 6.17(2) of the Decision) that "the observations in MOD v Davitt concerning material variation was obiter to the decision. There was no basis for the use of the term in the [EPA]". The Tribunal appears to have preferred the submissions of Mr Cavanagh, because it does express the test in terms of the two alternatives in paragraph 6.19(2) of the Decision. However, in reaching its conclusion in relation to each Applicant, it only addresses the question as to whether the earlier contracts have been terminated. It seems to us that termination is what is required, and that the only relevance of the words materially varied will be that, where there has been a substantial variation to the contract, it may be likely to be concluded that, in fact, there has been such a significant change that it can no longer be said that the original contract survives, but that what continues is, perhaps by reference to Hogg, a totally different contract of employment.

40.4 The most significant decision, being that of the Court of Appeal, and relating to the very issue in question (albeit still by reference to the old version of s2(4) prior to its recent amendment) is Young, to which we have referred above. We have referred to the conclusion of the Court of Appeal that the applicant had one contract of employment throughout, notwithstanding changes in work content. At paragraph 10, Smith J recorded the submission of Counsel for the employers, by reference to the first decision of the House of Lords in Preston [1998] ICR 227, which had not been superseded by the decision of the Court of Justice in this regard:

"Lord Slynn of Hadley observed … [at] 237F that the structure of the [EPA] appeared to be based on the incorporation of an equality clause into a specific contract of employment and not into an "employment relationship". In that case the term "employment relationship" was used to denote the whole period during which the women had been employed under a succession of discrete contracts of employment. The House held that the word "employment" in s2(4) referred to a discrete contract of employment. Mr Brown argued that when Mrs Young was moved from job to job by National Power, she had, in effect, a new contract of employment. Her "employment relationship" lasted from 1969 until 1996, but her contract of


employment as a value for money analyst only lasted from 1991 until May 1995. Thus by analogy with the reasoning in Preston, her employment for the purposes of the application of s2(4) to her claim for an equality clause based on her work as a value for money analyst meant her employment in that capacity."

In paragraph 14 of her judgment, Smith J records the counter-submissions of Counsel for the applicant:

"Here Mrs Young had only ever had one contract of employment, lasting from 1969 to 1996. The tribunal had not found that she had new separate contracts of employment whenever she changed jobs … a continuing contract of employment must involve a continuing employment relationship, even if it embraced different jobs from time to time, and it would be incompatible with Community law if a woman was required to claim in respect of any such jobs before the end of the employment relationship."

Subject always to the obiter caveat to which we have referred above, the decision of the Court of Appeal in Young is closely tied to the facts of the particular case and the findings by the Tribunal in that case, and Mrs Young's Counsel's submissions were preferred on that basis:

"18. … "employed in the employment" in s2(4) must mean "employed under a contract of service". That accords with the House of Lords' decision in Preston [1998] ICR 227. There is a distinction within sections 1 and 2 between the words "employment" and "work". In our view, the distinction intended is that "employment" refers to the contract of the employment and "work" refers to the actual job the employee was doing. So, for example, for a claim under s1(2)(c) a woman has to prove two distinct things: first that she was doing work of equal value to that of a man whom she names as her comparator, and second that she and the male comparator were in the "same employment". It is clear that the man and woman may be doing different jobs while in the same employment. So "employment" must relate to the contract of employment. Section 2(4) imposes a limitation period by reference to the termination of employment. In our view, there is jurisdiction, provided that the Applicant brings her claim within 6 months of the termination of her contract of employment.

19. On the facts of this case, there was no finding by the tribunal that Mrs Young had had a new contract of employment when her work changed in 1991 or 1995."

41. Finally there is that part of the judgment of Judge McMullen QC in Preston (No 3) in which he deals with this issue, namely at paragraphs 106 to 111. He refers in this passage to the judgment of Lord Parker CJ in Marriott, with the reference [1969] 1 WLR 254 at 258-9. This was the judgment of the Divisional Court in that case, which was, it seems, reversed by the Court of Appeal, as reported in [1970] 1 QB 186, referred to in paragraph 40.1 above: but, although the learned Judge does not address, and seems not to have known, this (and the Court of Appeal judgments do not appear to have been cited to him) we are satisfied that the passages which he recites, and which were also influential with the Tribunal, as appears from paragraphs 6.16(6) of its Decision, are not affected, nor detracted from, by the reversal in the Court of Appeal, and indeed give helpful guidance. Judge McMullen QC said as follows:

"108. I do not accept that it was possible to vary a contract which had terminated. What followed the old contract was a new one, not its continuation in varied terms. I, of course, accept the principle set out in Marriott … [1969] 1 WLR 254 per Lord Parker CJ, as to the essential distinction between a variation and a rescission, for he said, at p259:

"An important consideration is the nature of the alleged variation. In order to amount to a rescission it must be so fundamental that nobody could claim that the original contract was still in being. On the other hand, the new terms may be on such minor matters that really the only common sense of the case is that the original contract is in being, subject to slight variations. In other words, each case must depend upon the circumstances of the case."

109. That case concerned the reduction in pay, and demotion, of a worker where it was held that his agreement thereto constituted a variation and the circumstances were not a dismissal giving rise to a redundancy payment." [It is thus clear that the learned Judge did not appreciate the existence of the subsequent decision of the Court of Appeal] "… Lord Parker reminded himself, at p258, of the essence of the judgment of the House of Lords in Morris v Baron & Co [1918] AC 1 that:

"the answer to the question is always one of intention: was the intention to make a new contract, in which case the old contract was rescinded, or was the intention merely to treat the old contract as in being but with certain variations."

42. It is against that background that the Tribunal considered the facts of the particular cases before them, recording, at paragraph 6.16(6), Mr Cavanagh QC's submission in relation to each case that there "were not minor variations, but a new contract", and Mr Cross's submissions to the contrary that (paragraph 6.17(2)) "what had occurred in the instant cases was a variation and not a termination … there were no breaks, but merely a change in job … (paragraph 6.17(4)) the promotions had taken place … as being no more than a minor variation … documents recording the changes were headed "variation of appointment"."
43. We turn then to the conclusions of the Tribunal, which we must consider against the background of two significant factors:

43.1 The Tribunal is the industrial jury as judge of the facts. Difficult as it is to establish a case of perversity before this Appeal Tribunal (see most recently Yeboah v Crofton [2002] IRLR 632), in any event Mr Cross's Notice of Appeal does not rely upon such a case. It is important to record both that the Tribunal accurately sets out the relevant law and gives no sign of having misdirected itself and that it had the benefit, as the tribunal of fact, of the oral evidence of Mrs Pauline Kavanagh, on behalf of the Respondent, with no oral evidence from the Appellants.

43.2 The Tribunal is obliged to give a sufficient account of its reasoning to enable the parties, and an appellate tribunal if appropriate, to understand why a party won or lost: see Meek v City of Birmingham District Council [1987] IRLR 250. This is
Mr Cross's first ground of appeal in respect of this issue. In looking at the conclusions of the Tribunal, in the light of the approach in law, which it correctly recited, it will be essential to see what the basis was for its conclusion in relation to each of the four Appellants that in each case the appointment to the most recent position amounted to a termination, and not a variation of the earlier contract of employment.

Mrs Camfield

44. The Tribunal had already recorded, in paragraph 6.10 of its Decision, that she had been a home help, graded at manual grade 5, under the old White Book, and was regraded and subsequently "assimilated" under the new Green Book. She took over, as set out in
    paragraph 31.1 above, as from 2 July 2001, temporarily, the duties of Home Care Manager, which had been formerly a Purple Book job, and which was a substantial number of points higher than her previous job on the Green Book ratings. The Tribunal referred to the NOVA document, which reflected her appointment as Domiciliary Care Co-Ordinator, as from
    2 December 2002, and found, in relation to that document, both with regard to Mrs Camfield and to the other Appellants, that "it was the practice … to issue a new written statement of particulars at least when a permanent new post was offered". The findings of the Tribunal, at paragraph 6.19(3)(a) are as follows:

"Mrs Camfield moved from a home help's job on fixed spinal point 9 with effect from 2 July 2001 to the temporary duties of a home care manager, an old Purple Book job on a spinal range [21-30]. On 20 November 2002 she signed the notification of offer/variation of offer and commenced a permanent job as domiciliary co-ordinator/home care manager on salary scale 18-21 on 2 December 2002. … We find that the assignment to temporary duties did not have the effect of terminating her old contract, since we consider that if the assignment had been ended it is likely that she would or could have reverted to her old job under her old contract. During that period her old contract was suspended and the vacancy held open." [We interpret this as a finding that the old contract in fact at that stage continued in existence.] "However, we are satisfied that her old contract was terminated at the latest when she commenced the permanent new job, and was then issued with new terms and conditions on 2 December 2002. Thus her claim in respect of her original contract is out of time."

45. The reasoning in this paragraph is exiguous. The conclusion that there were, on
    2 December 2002, "new terms and conditions" is one which is difficult, though not impossible, to reach without sight of the written statement/statement of particulars which, in the light of the Tribunal's own findings at paragraph 6.10, at least may well have existed in relation to the job of Senior Home Care Assistant, which she appears to have fulfilled prior to 1 July 2001, when she was seconded to her temporary position as Home Care Manager, and which, on the Tribunal's finding, continued to have effect during that secondment until terminated, presumably by consensual rescission, upon her appointment as Domiciliary Care Co-Ordinator. The Tribunal directed itself by reference to the words of Lord Parker CJ, as adopted by
    Judge McMullen at paragraph 108 of Preston No 3, whereby "in order to amount to a rescission it must be so fundamental that nobody could claim that the original contract was still in being: on the other hand the new terms may be on such minor matters that really the only common sense of the case is that the original contract is in being, subject to slight variation": and by reference to Judge McMullen QC's summary of the position of Mrs Bunyan at paragraph 120 of Preston No 3, that she "moved to a wholly new position on terms that are very significantly different". In the absence of a document, with which the new particulars of employment can be compared, at the very least we would have expected more assessment of the change of job, duties, status and pay, than is to be derived simply from a conclusion that the new job was an old Purple Book job, as opposed to an old White Book job. We are satisfied that the Tribunal has given inadequate reasoning for its conclusion. That is not to say that the conclusion is wrong, although on further consideration it might prove to be so, but we are satisfied that the conclusion of the Tribunal, as it is at present, cannot stand.

Mrs Marlow

46. The Tribunal records, at paragraph 6.12, that she was, until 28 July 2002, a Senior Home Care Assistant, as set out in paragraph 31.2 above. Also as there set out, she was seconded as a temporary Financial Services Officer from July to December 2002, and then made permanent as a Domiciliary Care Co-Ordinator. The Tribunal notes that "both the temporary and permanent posts were former Purple Book jobs": we do not know if the implication is that Senior Home Care Assistant was a former White Book job. The findings at paragraph 6.19(3)(b) are even more concise than in respect of Mrs Camfield:

"By a similar process of reasoning we consider that her old contract as a Senior Home Care Assistant terminated at the latest on 2 December 2002."

47. Again, her contract or particulars of employment as a Senior Home Care Assistant, prior to her secondment as Financial Services Officer, and then her permanent appointment as Domiciliary Care Co-ordinator, is not available. One could see that there may well be a substantial difference between the job of Senior Home Care Assistant and Financial Services Officer, but the latter was, as with the position of Mrs Camfield, only a secondment, so that it would appear that the Tribunal, by referring to "a similar process of reasoning", was again concluding that her earlier contract remained in force during that secondment; so that the question of rescission or variation would have arisen upon her appointment as Domiciliary Care Co-ordinator, just as it did in relation to Mrs Camfield. In those circumstances, our conclusion must be the same.

Mrs Barnett

48. Like Mrs Marlow and Mrs Camfield (though without interposition of any temporary secondment), Mrs Marlow was, until 1 December 2002, a Senior Home Care Assistant. At paragraph 6.14, the Tribunal records:

"Although it has not been made clear to the Tribunal whether her previous post as home care worker was or was not a former White Book-rated post, it is clear that the offer made on 18 November 2002 was for promotion to a former Purple Book job".

Again, the earlier contractual documentation was not available to the Tribunal. Given the apparent uncertainty of the Tribunal, it is even more difficult to see how the Tribunal reached the conclusion it did in relation to Mrs Barnett at 6.19(3)(d):

"If the applicant's contract as senior home care worker was a former White Book job, it terminated when she accepted a permanent full time post as domiciliary care co-ordinator with effect from 2 December 2002. This was not merely promotion, but was a change to a salaried former Purple Book job, with a spinal range."

49. Once again, the conclusion may be right, but the reasoning is absent.

Mrs Ions

50. Mr Cross has frankly accepted that this Applicant, on the findings of the Tribunals, falls into a different category. At paragraph 6.15, the Tribunal records:

"The applicant was employed from October 1985 as a care assistant. On 28 September 2001, she signed the formal notification of acceptance/variation of appointment for the permanent part time post of social worker, health and disabilities with a commencement date of 28 August 2001."

51. The Tribunal's conclusions are at paragraph 6.19(3)(e):

"She moved from being a care assistant to a permanent part time post of social worker, with a commencement date of 28 August 2001. This was a move to a completely different job. Her old contract terminated on that date at the latest."

52. Although this paragraph, too, is concise, the reasoning is clear, and, is difficult to challenge on the facts, and Mr Cross has indeed not sought to do so, and in particular not sought to suggest that the finding that her new job was "completely different" was perverse. No error of law is identified.

Remission

53. While dismissing the appeal in respect of Mrs Ions, therefore, we are satisfied that the appeal must be allowed in respect of Mrs Camfield, Mrs Marlow and Mrs Barnett, and their cases remitted to the Employment Tribunal for further consideration. We are of the view, and no submissions have been made to the contrary, whether in the light of the principles outlined in Sinclair Roche v Heard [2004] IRLR 763 or otherwise, that it is proper and appropriate to remit the matter for hearing to the same Tribunal. They must complete the job which, in the light of our conclusions, remains unfinished, in considering the position of whether what occurred in relation to the three Appellants when they took up their last positions with the Respondents, amounted to termination of an earlier contract of employment and commencement of a fresh one. We have made a direction that all reasonable steps should be taken by the parties to disclose copies of any documents in writing containing or evidencing the earlier terms (or contracts) of employment: as the Appellants chose not to call evidence at the hearing, we concluded, after discussion, that it is not appropriate, at any rate without application to this Appeal Tribunal, to vary such direction, that on the remission they should be permitted to change their minds and give evidence.

Conclusion

54. In those circumstances, in Allan the appeal of the Newcastle Council is allowed, and the Originating Applications must be amended to delete the claims and assertions. as against the Respondent Council, of direct sex discrimination, unlawful deductions and claims for compensation for injury to feelings or other non-economic loss, aggravated or exemplary damages. So far as the appeal in Degnan by the Applicants is concerned, the appeals by
    Mrs Camfield, Mrs Marlow and Mrs Barnett, in respect of the time point decided against them by the Employment Tribunal, are allowed and their cases remitted for further hearing by the Tribunal, but the balance of the appeals of all Applicants on all other points are dismissed.