United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr John Cavanagh (One of Her Majesty's Counsel) and Mr Jason Galbraith-Marten (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street LONDON WC1B 3LW
For the Respondent	Mr Andrew Stafford (One of Her Majesty's Counsel) and Mr Christopher Quinn (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road NEWCASTLE-UPON-TYNE NE4 8AW

SUMMARY

SEX DISCRIMINATION

Indirect

Victimisation

The Employment Tribunal found that the failure by the union to support certain female members in their claims for equal pay against their employer, and the union's subsequent treatment of these members once it became known that they were pursuing such claims through the employment tribunal, constituted both indirect sex discrimination and victimisation discrimination. The union appealed against both findings and the EAT upheld the appeals and substituted a finding that there had been no relevant discrimination.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. Five test claimants (the claimants) brought claims of sex discrimination against GMB, the trade union of which they were members.
2. They alleged that the union had discriminated against them contrary to the Sex Discrimination Act 1975 in the way it had dealt with their claims for equal pay against the Middlesbrough Metropolitan Borough Council ("the council"). It was alleged that the union had discriminated contrary to that Act in three respects. First, they had directly discriminated against the claimants; second they had unlawfully indirectly discriminated against them; and third, they had been victimised by reason of the fact that they sought to litigate their equal pay claims.
3. The Employment Tribunal heard evidence over some twelve days. They set out the evidence and their analysis in considerable detail. The decision of the Tribunal runs to almost 150 pages. The Tribunal concluded that there had been no direct discrimination by the trade union; these women had not been disadvantaged in any way by the union because they were women. However, they held that the union was liable for indirect discrimination and also for certain acts which constituted victimisation discrimination against the women concerned.
4. The focus of the litigation below was very substantially on the direct discrimination claims. The analysis of the indirect discrimination and victimisation claims is dealt with relatively briefly in the decision, although to some extent the findings which were made in the context of the direct discrimination claim are necessarily material to the other discrimination allegations.
5. There is no appeal against the finding of direct discrimination. The union does, however, challenge both the findings of indirect and victimisation discrimination.
6. The claimants have conceded that the Tribunal erred in their approach to the question of victimisation discrimination. The claimants do not seek to support one of the grounds on which the Tribunal found such discrimination at all. As to the other two, they accept that the reasoning of the Tribunal was somewhat peremptory and that there is no adequate explanation of the way in which the finding of victimisation was reached. Accordingly, they accept that this part of the appeal must succeed, but submit that the issue on these two matters should be remitted for further consideration. The appellants contend that we should substitute a finding that there was no victimisation discrimination.
7. The concession that one of the conclusions of the Tribunal is unsustainable suggests that there are certain unsatisfactory features about the decision of this Tribunal. The case does, however, raise difficult and contentious points and we pay tribute to the conspicuous care and attention which has gone into this decision. For the most part the Tribunal has marshalled the material with skill, and in the principal area which was under consideration, namely direct discrimination, the explanation for their decision is clear, cogent and well-reasoned.

The background

8. The very brief summary we give of the background facts fails to do any justice to the sophisticated and nuanced analysis made by the Tribunal itself. Ultimately, however, as both counsel accept, the legal issues in this appeal can be determined by placing the facts on a relatively broad canvass.
9. The story begins in 1997. In that year a national collective agreement, known as the Green Book agreement, was entered into between public service trade unions and local authority employers. The intention was that this agreement should replace the various sets of terms and conditions that applied to different categories of local government employees with a new set of terms and conditions applying to grades 1 to 6 of all the employees employed by local authorities. This process was known as "single status".
10. Prior to the Green Book, the terms and conditions had varied as between different categories of worker. Manual workers were subject to what were known as the White Book terms and conditions; APT & C workers were subject to the Purple Book terms; and craft workers were subject to the Red Book. In fact the Red Book workers would not be part of the new arrangements. Accordingly, the Green Book provided common terms and conditions for only the White and Purple Book workers.
11. Although the Green Book laid down certain terms which were to apply nationally to employees of all local authorities, it also provided for the devolution of pay scales and pay rates to local level. One of the aims of the Green Book was to eradicate gender based pay inequalities which it was generally recognised had crept into local authority pay structures. In order to bring about equality the Green Book provided that the fixing of local pay rates should be preceded by a job evaluation study in each local authority. Each job would be assessed and placed on the Green Book pay scale. Until that was completed, however, the old pay scales and rates would continue to apply. In fact most of the White Book workers were the subject of an earlier job evaluation study, but the Purple Book workers were not. Middlesbrough carried out a job evaluation study and the new terms consequential upon that came into effect on 1 April 2004. This process of integrating into a single pay structure was known as the move to single status.
12. The negotiations of single status proved to be extremely challenging. Local authorities do not, of course, have unlimited funds to meet staff costs and are heavily dependent upon central government funding.
13. Inevitably when a new job evaluation study is entered into, there will be some whose jobs are rated higher and some lower. Traditionally, the way in which unions seek to protect the interests of those whose jobs are assessed at a lower level and who would, absent any special measures, be likely to take a reduction in pay, is to secure for those workers pay protection over a limited period of time.
14. The hope, which is often achieved, is that by providing pay protection there will never need to be a reduction in the pay actually received by the staff whose pay has been assessed downwards. They do not have the annual increases that others have, and it is often the case that over the relevant pay protection period – frequently it will be three years – the pay of those who are now rated equally will catch up with the higher paid protected staff.
15. From the union point of view, the need to seek to provide safeguards for that particular group is obviously extremely important. Any union would be subject to considerable criticism if it were to be party to an agreement leading to an actual pay cut for some of its members. The Tribunal recognised this. They accepted in terms the evidence of Mr Strutton, a national officer responsible for the public service section, that "for a union to agree a result, without fighting tooth and nail to prevent anybody from being a loser to a greater extent than is absolutely necessary, would be likely to drive all union members away."
16. A complicating factor in this case was that many of the female employees, some of whom were union members, were seeking to contend that they had been the subject of past sex discrimination. Some White Book staff claimed that there were male workers employed on work which had been rated as equivalent in the White Book job evaluation exercise who had unjustifiably been in receipt of various bonuses. The allegation was that in practice they had been receiving higher pay for the work which had been rated the same for no legitimate reason in breach of the Equal Pay legislation.
17. Other Purple Book staff could not seek equality under the job evaluation study since their jobs were not assessed under the White Book scheme. However, they made claims on the basis that their jobs were of equal value to their male, White Book comparators. The union accepted that the bonus arrangements had caused inequalities. As early as March 1997 the union stated its view that they discriminated against women. At the same time, they were contending that any change to bonus payments should be resisted. The logic was that any discrimination had to be eradicated by putting all staff onto the higher pay rather than reducing the pay of the men. Even at the early stages, however, the union made it clear that they were seeking a negotiated settlement; they did not want to resolve the perceived discrimination by litigation.
18. The union, therefore, was faced with a situation where the interests of those women with historic equal pay claims would be served by pressing those claims and also by seeking to secure the backdating of pay up to the six years permitted by law to redress past discriminatory wrongs. As against that, they had to seek to provide pay protection for those who would otherwise have had their pay reduced following the implementation of the single status agreement; and they wished to improve pay for the future for all their members.
19. In relation to these conflicting objectives, the union also had to have regard to the fact that the council did not have unlimited resources. As the Tribunal found, there was a genuine fear that if the union pressed too hard for the interests of the women seeking back pay for past discrimination, it could undermine the aim to maximise pay protection and secure pay increases for the future. In addition, the Tribunal accepted that the union were genuinely concerned that pushing too hard for back pay might possibly lead to redundancies or contracting-out by the council in order to enable it to meet its liabilities. Neither was an attractive option for the union or its members.
20. The union determined to give priority to the interests of those needing protected pay and to achieving equality for the future rather than to maximising the back pay claims. This was very much in response to the pressures from the membership itself. Those who were adversely affected by the new Green Book pay structure introduced following the implementation of the job evaluation study were deeply unhappy with the union.
21. By contrast, there was, particularly in the early stages, relatively little active enthusiasm for pursuing the back pay claims. Only five union members attended a meeting at the Middlesbrough Town Hall in 2003 called specifically to address this question, notwithstanding extensive efforts to publicise it. Moreover, many of the women were satisfied to receive some back pay, particularly when they had no clear idea of what might be due to them. In the circumstances, the Tribunal found that the aim of the union was not specifically to protect men's pay; rather it was to "achieve equality with as little collateral damage as possible. That is a legitimate aim." (para 3.98).
22. The agreement subsequently struck with the council provided for a settlement of the claims of the White Book staff on the basis that they would receive what the Tribunal considered to be little more than 25% of the full potential of the claim. No offer of back pay was made to the Purple Book claimants who were making equal value claims, the council apparently taking the view that they did not have any legitimate equal pay claims. The union wrote to the members to encourage them to accept the offer. They told the women that the offer was the best that could be achieved, and emphasised that lengthy legal proceedings could lead to a loss of jobs. They also informed the members that if they accepted the offer then they would be giving up their rights to litigate, and they advised members to take independent legal advice. The terms of that letter were the subject of heavy criticism by the Tribunal on the grounds that it emphasised the negatives of not accepting the offer and sought to "persuade or frighten" the women into accepting it.
23. Because some women felt aggrieved at what they perceived to be the union policy of sacrificing their interests to those of other groups within the union, they went to an outside solicitor, Mr Stefan Cross, who was willing to take their cases on a contingency fee basis. He was prepared to work for them on the basis of 'no win no fee'.
24. This agreement entitles him to charge them a percentage of any compensation that they are awarded as a result of his acting on their behalf. He has advertised widely amongst local government and other public sector employees and has contended that these women were let down by their union. Indeed, he has gone so far as to suggest that this and other trade unions have been acting in bad faith in the single status negotiations and have been colluding with employers to defeat the legitimate equal pay rights of these women. He has brought this case on behalf of these women.

The direct discrimination claim.

25. The Tribunal's reason for rejecting the direct discrimination claim is summarised at paras 7.32-7.33 as follows:

7.32 "Viewed in this way we can express our conclusions on the direct discrimination claim in respect of the two remaining and indeed all five headings in the list of issues. The Union knew that the consequence of pressuring the Council to comply with the Act would be to trigger a back pay claim and set one union member against another in a contest for a distribution of a limited pot of money. With full back pay and future "equalisation up" being recognised to be a pipedream, the decision to recommend what we find were low levels of settlement of back pay claim and the decision to press for as much pay protection as they could legally get away with (within the ambit of Miss Eady's advice) and the best pay line possible was entirely because that would produce the least protest from the membership as a whole. The "reason why" was not the genders of the people in those groups. It was an attempt to keep the peace and to appear to as many people as possible to have done a "good job" as a Union in representing the interests of all members. (see paragraph 3.181).

7.33 The approach to the pay structure was always to get as much as possible for everybody. Men and women were treated no differently at all in that isolated respect. It is the balance between back pay on the one hand and pay protection and the eventual pay line on the other hand which has concerned us, as indeed it concerned Mr Strutton. If those would have benefited from enforcing their entitlement to back pay as set out in the Act were predictably nearly all women, which they were, and far less thought and attention was given to their rights than to pay protection an the future pay line where the disenchanted group would be at least as many men as women we could infer in the absence of an explanation that the gender of the respective groups or some stereotypical assumptions about them was part of the reason (and it need only be an effective cause not the sole cause) for the less favourable treatment of these test claimants and their colleagues. However the explanation provided by the respondent's witness, put at its most euphemistic, is "it was our duty to do act in the best interests of all members". Unwittingly, Mrs Bartholomew put it far better. Those who had lost out in the process when confronted at meetings by her and her colleagues wanted to "string them up". Therefore in addition to seeing the priorities which the Union adopted as a means of keeping the Council on side with regard to making rapid progress to what Single Status and avoiding job cuts etc Mrs Bartholomew and others had the somewhat less noble but perfectly understandable reason that by organising their priorities as they did the Union officials would be more popular with their members as a whole. The "losers" would be fewer and complain less. The back pay claimants would not realise what they had missed (unless Mr Cross told them!) That explains why the Union was as keen as it was to paint Mr Cross as an opportunist who cared more about earning fees than about job security and to persuade its members by any means possible not to "sign up" with him. Last but not least it is anathema to a Union that they should agree to anything being taken away from a member. So the fact that they fought hard for the likely losers and "rolled over" to the first offer for the back pay claimants was purely because from a Trade Unionist point of view it was the natural and least divisive course of action to take."

26. The Tribunal added that antipathy to the cause of equal pay did not amount to antipathy towards women. Accordingly the Tribunal were satisfied that the objective itself was not to protect men's pay and they also accepted that the union officials locally namely Mr Smith, the regional secretary and the local full time officer, Mrs Bartholomew, did not in fact perceive pay protection as being a "male issue". Indeed, there were many female clerical staff who were going to lose out in the new single status agreement and who would benefit from pay protection. They were satisfied that the explanation given by the union for what they had done was "completely and utterly convincing".

Criticisms of the union's approach.

27. However, whilst acquitting the union of direct sex discrimination, the Tribunal were highly critical of the union in a number of respects. First, they considered that the union had failed to protect the interests of the claimants by not issuing legal proceedings at an early stage so as to establish an early date for the calculation of back pay. Even if the union had not wanted ultimately to litigate, they should have taken this step to preserve potential claims. This was part of a general failure to press for single status. The Tribunal considered that in part the reason for this was what it described as "aporia", namely a state of indecision which is caused by an apparently insoluble problem.
28. Second, they found that the union had deliberately omitted to give advice to the group about back pay and refused to support litigation. The reason was that they did not wish to offend the Council and delay or impede the progression to single status.
29. Third, the Tribunal were critical of the union for what they described as "rushing head long" into an ill-considered back pay deal. In particular, they were critical of the union's willingness to accept the council's plea of poverty rather than to pressurise the council into having to deal with the problem, perhaps by the sale of capital assets or by making savings in other areas. The Tribunal concluded that whilst there was nothing wrong with negotiating rather than litigating:

"when the negotiating involves endless talking and no achievement then can it be proportionate to the legitimate aim of not upsetting the Council to take no step nor even to threaten to take steps to enforce rights under the Equal Pay Act either by litigation, industrial action or any other means? We think not."

30. Finally - and this is what the Tribunal identified as the primary concern of each of the Tribunal members - the Tribunal held that the union had failed to give the claimants a fully-informed choice about the options available to them. They were not informed that what they were being offered was substantially less than they might receive if they succeeded in litigation before a tribunal and there was no assessment of the litigation risk which the Tribunal in fact assessed to be relatively small, at least for some of the group concerned.
31. The Tribunal considered that if the union were going to require the claimants to make some sacrifice in the interests of other union members, whether those seeking protected pay or in the interests of higher future wages generally, then that should have been made plain to them. Indeed, in the Tribunal's view not only had there been a failure to provide full information, but there had been the positive manipulation of these "relatively unsophisticated claimants" by suggesting that the offer from the council was acceptable, and placing them in a position where they were in fear that if they pressed for more it may lead to job losses and they would be seen as traitors by their colleagues. The Tribunal described this as "the worst aspect of the case."

Indirect discrimination: the law.

32. The relevant legislation is as follows:

Section 12

(1) This section applies to an organisation of workers …

(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

33. The definition of discrimination is found in s 1 of the 1976 Act as follows:

Section 1

(2) In any circumstances relevant for the purposes of a provision of this Act to which this subsection applies a person discriminates against a woman if:-

(a) on the grounds of her sex he treats her less favourably than he treats or would treat a man or

(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but –

(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied

(iii) which is to her detriment.

34. We begin by making a general observation about this definition which is pertinent to this case. The organisation must apply to the claimant a "policy, criterion or practice" which it applies, or would equally apply to a man. This language is the result of an amendment made to the Sex Discrimination Act by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001.
35. Until that amendment, the provision read that indirect discrimination would arise where the union applied "a requirement or condition…which is such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply." (The formulation in place when the alleged discrimination occurred has now been further amended with effect from the 1 October 2005 by the Employment Equality (Sex Discrimination) Regulations 2005, although we doubt whether the amendments would have had any significance in this case.)
36. The classic examples of indirect discrimination are indeed cases where the employer has imposed a requirement or condition which must be complied with before a benefit can be obtained. The early cases were about benefits given to full time workers but denied to part timers: see e.g Bilka-Kaufhaus Gmbh v Weber von Hartz [1987] ICR 110 and Jenkins v Kingsgate Clothing [1981] ICR 592.
37. Given the different social roles of men and women, such a form of discrimination will inevitably adversely affect women as a group more than men. There is an apparently neutral provision, namely that full timers acquire a benefit, which is applied to all equally, but with which women, cannot as a group, comply as readily as men. The criterion chosen causes the workforce to be divided into a favoured predominantly male group and a less favoured predominantly female group.
38. However, it is clear that this is not the only way in which indirect discrimination can be established. There are also cases where an employer may choose to confer a benefit on a pre-existing predominantly male group but deny it to a predominantly female group. A classic example is the well known case of Enderby v Frenchay Health Authority and Secretary of State [1994] ICR112 (ECJ) Speech therapists, overwhelmingly women, were paid less than

predominantly male professions for work of equal value (or at least which was assumed to be so for the purposes of the case.) The employers contended that the explanation for the difference was non-sex tainted collective bargaining.

39. That was rejected by the European Court of Justice which held that the overwhelming evidence from the statistics was that there must have been some form of discrimination which required justification. The discrimination in that case did not take the form of an ostensibly neutral criterion ostensibly applied to all but whose effect was to impact adversely on women. Rather it was a practice or policy - whether better described as one or the other does not really matter - of paying the predominantly male group more than the female group in circumstances which suggested that the difference in pay was related to the sex of the two groups. The amendment to the definition of indirect discrimination introduced by the 2001 regulations more satisfactorily embraces both forms of discrimination than did the earlier definition.
40. The EAT (Elias P) analysed these two forms of discrimination in some detail in Villalba v Merril Lynch [2006] IRLR 437, paras 1104-117, although the EAT (Elias P) qualified that analysis in Middlesborough County Council v Surtees UKEAT/077/07 (paras 24-55) in the light of the decision of the Court of Appeal in Armstrong v Newcastle Upon Tyne NHS Hospital Trust [2006] IRLR124. The qualification was to the effect that even where the employer adopts a policy or practice of favouring a male group over a female, there will be no indirect discrimination if the employer can show that, notwithstanding appearances, the difference in treatment has nothing to do with sex. If he cannot do that, then the difference in treatment will be unlawful unless it is objectively justified.

The Tribunal's conclusions on indirect discrimination.

41. The Tribunal summarised the arguments on this aspect, noting that counsel for the claimants had focused almost exclusively on direct discrimination and had barely touched on indirect, either in writing or in his oral submissions. The Tribunal identified the potentially discriminatory practice as being the agreement to a low back pay settlement in order to release monies for the future pay line and pay protection.
42. The Tribunal concluded that the disadvantaged group were predominantly women, and that it was no accident that this was so. The gender balance within the jobs was marked and rooted in "outdated cultural and sociological ideas." They went on to find that the practice could not be justified, principally because of the conduct of the union which we have identified in the four criticisms referred to above.

The grounds of appeal.

43. The union challenges each of these findings. They submit that the central error of the Tribunal was that they should never have found that this was an indirect discrimination case at all. The only potential complaint was direct discrimination, and once that was rejected, it was inappropriate to try to shoehorn the facts into an indirect discrimination analysis. In particular there was, properly analysed, no barrier of any kind which could be said to constitute a provision, criterion or practice, nor was any such provision, criterion or practice applied to anyone. It was simply a case where the claimants potentially entitled to back pay were treated in a way which they considered - and the Tribunal considered - to be unjust.
44. Further, they contend that the practice did not in fact have a disparate impact, and that the Tribunal had only concluded that it did by an artificial and blinkered consideration of who were the winners and losers in the arrangements made. Finally the union submit that they were obviously objectively justified in adopting the position they did, and that the Tribunal were wrong in law to hold otherwise.
45. The claimants say, in equally trenchant terms, that this was a plain case where the practice or policy adopted by the union adversely impacted on the women since it was women, for the most part, who would benefit from the back pay. The disparate impact was plain, as the statistics identified by the Tribunal made clear. Moreover, given the misleading and deceitful way in which the union secured the agreement of the women to the terms agreed with the Council, there can equally be no doubt that it was open to the Tribunal to find that the discrimination was not justified.
46. We will deal with the three issues in turn.

Was there a provison, criterion or practice imposed?

47. The practice was identified by the Tribunal in the following way (para. 7.40):

"Their actions were manifestations of their policy to achieve Single Status with the minimum of "losers" as a prerequisite to which they felt that they had to "settle" back pay claims. The Union applied a practice of agreement to a low back pay settlement for Mrs Spayne [the White Book claimant] and doing nothing for the APT & C workers in order to leave as much money as possible for the pay line in the future and pay protection where necessary. Mr Quinn splits this into three provisions criteria or practices. In our judgment they are all manifestations of one and the same practice."

48. Later the Tribunal said that the practice involved "striking a balance between back pay, future pay and the need for pay protection." The way in which that balance was struck was that "all losers must be protected to the greatest possible extent."(para.7.43). This practice applied to all GMB members covered by the single status agreement.
49. Mr Stafford QC, counsel for the claimants, put the practice slightly differently. He submitted that it was that "in order to get full representational support from the union, you must be a non back-pay person". The union had to determine where to put its negotiating pressure and the inevitable effect of its policy was to benefit the predominantly male group at the expense of the predominantly female.
50. Mr Cavanagh QC, counsel for the union, contends that none of these formulations identifies a practice at all, and in any event Mr Stafford's description of the practice was not that adopted by the Tribunal. He submits that in order to constitute a provision, criterion or practice there must be something which makes it harder for members of one gender to qualify than another. There has to be a neutral rule which ostensibly applies to all but which in fact operates as a barrier or gateway preventing access to some benefit in a way which adversely impacts on women.
51. He relies upon the analysis of the House of Lords in Secretary of State for Employment v Rutherford (No 2) [2006] UKHL 19; [2006] ICR 785. In that case a male employee alleged that a law which (prior to the laws on age discrimination) prevented any person over the age of 65 from pursuing claims for unfair dismissal constituted unlawful indirect sex discrimination against men and was not justified. The basis of the claim was that proportionately more men than women continue to work after that age, and that therefore there was an adverse disparate impact which, it was submitted, could not be justified. The claim was brought under Article 141 of the EU Treaty, but both parties accept that the analysis of indirect discrimination in that case applies similarly here.
52. A majority of their Lordships House (Baroness Hale, Lord Scott and Lord Rodger) held that properly analysed, the case did not even raise an issue of indirect discrimination, whilst Lords Nicholls and Walker held that in principle it did, but they found on the facts that the statistics did not establish disparate impact. Each of the judges in the majority gave different reasons why they considered that there was no discrimination. However, it was essentially that the relevant pool was those who wanted the benefit of which they were denied. In this case that was the right to bring a claim for unfair dismissal after the age of 65. Yet everyone over that age was barred, and no-one younger was barred. It was not a case where some persons were able to benefit from the provision in question and others could not. Mr Cavanagh has focused in particular on a passage from the judgment of Baroness Hale (paras 71-72):

71 The essence of indirect discrimination is that an apparently neutral requirement or condition (under the old formulation) or provision, criterion or practice (under the new) in reality has a disproportionate adverse impact upon a particular group. It looks beyond the formal equality achieved by the prohibition of direct discrimination towards the more substantive equality of results. A smaller proportion of one group can comply with the requirement, condition or criterion or a larger proportion of them are adversely affected by the rule or practice. This is meant to be a simple objective inquiry. Once disproportionate adverse impact is demonstrated by the figures, the question is whether the rule or requirement can objectively be justified.

72 It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be.

73 But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. The twists and turns of the domestic case law on indirect discrimination show that this is no easy matter. But some points stand out. First, the concept is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something. The disparate impact complained of is that they cannot have what they want because of the rule or requirement, whereas others can." (Emphasis added.)

53. Mr Cavanagh submits that this supports his contention that indirect discrimination is concerned with identifying a barrier. He cites the difference between part and full time workers as a classic example. That, he submits, is not the case here. The union had merely adopted a strategy or negotiating stance which led to the different treatment of different groups. The fact that this affected more women than men was not enough to give rise to prima facie discrimination, as the italicised words above indicate.
54. Mr Cavanagh seeks to gain further support from the decision of the Court of Appeal in BMA v Chaudhary [2007] EWCA Civ 788. The facts in that case were complex. Suffice it to say that one of the submissions in that case was that the BMA had a policy of refusing to lend its support to members who wished to take discrimination cases taken against certain bodies, such as the Royal Society of Medicine, a Postgraduate Dean, or a Specialist Training Authority, and that this indirectly discriminated against certain racial minorities.
55. The Court of Appeal said that on the evidence, this was not in fact correct, but held that in any event such a policy would not demonstrate any indirect discrimination because that bar would apply to everyone. In those circumstances, even if it could be said that more members of one race rather than another might be disadvantaged by that rule, it did not constitute discrimination. Support was available for all other bodies on a non-discriminatory basis and it would not be available to anyone with regard to these bodies. Lord Justice Mummery, giving the judgment of the Court (Lady Justice Smith and Lord Justice Maurice Kay) not only indicated that the Court of Appeal was, of course, bound by the decision of the majority in the House of Lords, but commented that he thought it was correct.
56. For what it is worth, we respectfully agree. The important feature of both those cases – and indeed the same may be said of the case of Barry v Midland Bank [1999] ICR 859, to which we make reference later – is that complaint is not about limited or discriminatory access to the benefit which the employer offers; it is a contention that the employer should have offered some other benefit or should have extended the benefit on offer. That takes it outside the realms of indirect discrimination. If the benefit is provided on a non-discriminatory basis then it is not rendered unlawful because a different benefit would have less seriously disadvantaged one sex as opposed to the other.
57. Mr Stafford does not, and of course could not, challenge these decisions. He simply submits that the facts here do not begin to resemble those in either the Rutherford or Chaudhary. Here, he says, there plainly was a relevant practice which adversely impacted on women. There was a decision to use the negotiating services of the union so as to advance the interests of one group as against another. The policy which was adopted was applied to everyone but the consequence was that they did not all have access to the same benefit. On the contrary, there was a marked differential.
58. In our judgment Mr Stafford is correct. We accept that there is not necessarily prima facie indirect discrimination merely because a policy has an adverse impact on one sex when compared with the other. The employer may demonstrate that in fact there was no taint of sex discrimination and then, as the Court of Appeal held in Armstrong, there will be nothing to justify. However, this is not such a case. The criterion adopted was clearly sex tainted because the losers and winners had their roots in earlier discrimination as the Tribunal expressly recognised. Nor is it akin to Rutherford or Chaudhary. In both those cases all had equal access to what was on offer.
59. That is not the case here. The union were not using their negotiating pressure equally for the benefit of all. They were deliberately adopting a practice – perhaps policy is a better word- which focuses on a characteristic which itself divides the membership into predominantly male and female groups.
60. We agree with Mr Stafford that this is the inevitable result of the policy, given the fact that for reasons connected with their sex and not by mere chance, women were in the lower paid jobs with the equal pay claims. Indeed, in our view, contrary to the submissions of Mr Cavanagh, we see this as in substance a traditional barrier case, as Mr Stafford's formulation of the policy demonstrates. In essence, you had to be a loser following job evaluation to secure full union support. This was not precisely how the Tribunal expressed it, but in our view it fairly reflects the substance of their analysis. Just as in the case of full and part timers, it was the policy adopted which itself created the two pools.
61. In substance, therefore, we think that this is the classic form of discrimination, although it may be said to differ from the classic kind in two respects. The first is that the imposition of the requirement or condition is not a complete barrier to obtaining the benefit in issue. The women seeking back pay did obtain some negotiating support. However, we do not think that can possibly be a legally relevant distinction. It is as if the employer improved the lot of part timers a little, but not so as receive the same benefit as full timers.
62. Second, it is also the case that usually there is a single benefit which is in issue; the benefit which the predominantly male group receives is the same as that which is denied to the predominantly female group. On the face of it here there is a difference; at the risk of some simplification, one group seeks pay protection and the other back pay. It seems to us, however, that whilst that is what they seek from the employer, it is not what they seek from the union itself. When properly analysed, the complaint in essence is that the two groups were seeking a common benefit, namely the benefit of effective union representation in the negotiating process. The substance of the matter here was that the union were withholding that with respect to one group in order to assist another.
63. In support of his submissions, Mr Cavanagh also contended that it was wrong to say that the claimants were subject to any relevant practice; they had simply been subjected to treatment which they considered to be unacceptable. Nor had any practice been applied to them; they may have been affected by the policy, but that was a different matter. If the policy was applied to anyone, it was the Council.
64. We do not think there is any merit in the linguistic argument. In our opinion it is simply not correct to say that the claimants are subject to different treatment but that no policy or practice is being applied to them. This is as clear a policy as there could be. Similarly in our judgment it is perfectly sensible to say that the policy is being applied to those who are directly affected by it. It is not just an incidental or consequential effect but is the very object of the policy to secure greater protection for one group rather than another. If Mr Cavanagh were right, it would equally be open to a union to say that the policy of differentiating between full and part timers in the process of negotiating was not a policy being applied to the part timers. That would be a bizarre conclusion. Nor would it be relevant that the part-timers were content to be less favourably treated.
65. Finally in his oral submissions Mr Cavanagh placed emphasis on the italicised words from Lady Hale's speech set out above (para 52). He said that this supported the view that mere disparate impact does not of itself necessarily establish prima facie discrimination. For reasons we have given, we accept that as a general proposition, although we do not think that is what Lady Hale was saying in that passage. It seems to us that she was simply making the point that mere numbers do not demonstrate disparate impact; it is proportions which will count. In our judgment where disparate impact is established then at least where the employer does not demonstrate that it has nothing to do with sex (see Middlesbrough Council v Surtees) the obligation to justify arises.

Did the practice have a disparate impact?

66. The Tribunal concluded that the appropriate pools were as follows: those who could be predicted to have a good back pay claim were the disadvantaged group and the advantaged group was everybody else. The Tribunal carried out a detailed analysis of the statistics, which we do not think it necessary to set out here, and concluded that the disparate impact was "completely obvious."
67. We heard extensive argument about this, but in reality Mr Cavanagh's principal point on this, as he conceded, was closely intertwined with his primary argument on whether there was indirect discrimination at all. He contended that since there was no exclusionary barrier, there could be no relevant pools. We reject that submission, which necessarily falls with his contention that the issue of indirect discrimination was not even engaged.
68. An alternative submission was that in any event the Tribunal adopted too simplistic a view of the relevant pool. The adverse effect on the disadvantaged group was not as significant as the Tribunal suggested, given that some of the claimants who would benefit from back pay would also benefit from protected pay, and all would benefit from better future pay levels. Furthermore, they were not disadvantaged if they were content to accept what was offered to them.
69. We reject these submissions. We agree with Mr Stafford that Mr Cavanagh's approach focuses on the winners and losers in the overall scheme of single status rather than the effect of the union's policy. That shift of focus does not identify the effect of the particular policy. These potentially compensating advantages are in truth no more than mitigating features so far as the claimants are concerned. In so far as they have any relevance, it is in the context of justification rather than in assessing disparate impact.
70. In our view the Tribunal approached this issue perfectly properly and reached a conclusion which was in truth inevitable on the statistical material, which was not itself disputed.

Objective justification

71. In our view, this lies at the heart of this case. The Tribunal noted that both counsel had agreed that the appropriate test was to ask whether the means adopted by the union were proportionate to the attainment of a legitimate aim. That was the language adopted by Lord Nicholls in Barry v Midland Bank [1999] ICR 859, 870E. Lord Nicholls described how he understood the principle would operate:

"In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon."

72. The Tribunal appears to have accepted that the aims were legitimate. They said this (para 7.54):

"The end goal was to achieve Single Status viewed as the panacea. 'En route' to the end goal the aims were to avoid privatisations, avoid job losses, avoid cuts in hours, avoid or minimise 'losers' and insofar as losers were inevitable to get the best possible pay protection. Those aims are all legitimate."

73. The Tribunal concluded that the means used to achieve that objective were disproportionate. They highlighted some of the features we have already identified earlier in this judgment. In particular, they concluded that the advice given to the members was the antithesis of enabling them to make a fully informed choice. The claimants were denied the level of advice which would enable them to make a proper choice. They were not told that the offer was substantially less than they would receive following litigation; nor that for some persons at least the chances of success were very good; nor were they told that they were being disadvantaged in order to allow for greater levels of pay protection and a better eventual pay line.
74. The other grounds on which it was considered that the means were inadequate were the too ready acceptance of the council's plea of poverty and the failure to put that plea to the test; the failure to take any steps, whether by litigation or otherwise, to enforce rights under the Equal Pay Act; and the willingness to negotiate interminably without achieving results. Indeed, the Tribunal's conclusion was that the union officials knew that they were neglecting the interests of the back pay claimants.
75. The union did not take legal advice, thought the Tribunal, because that fact would have been starkly revealed (para 7.6.1). The Tribunal then identified what it considered to be the most serious aspect of the case in the following terms:

"7.66 But the worst aspect of the case in our judgment was the way in which relatively unsophisticated Union members were manipulated into either accepting the offer or doing nothing in the case of the APT & C workers by such alarmist information as was in the documents we quoted at paragraphs 3.149 to 153 above. The letters from the Union the Council and ACAS were phrased to create the impression that if the Council, three Unions and ACAS were content with the offer and the employee should be too. They were phrased in such a way as to produce a real fear amongst the members that pushing for more would involve job losses and make them traitors to their colleagues. In our judgment the description which Mr Quinn used of these letters is accurate. They were laden with "spin" in order to produce the end which the Union wanted i.e., acceptance. The Union eventually admitted in writing when it sent out the letters balloting for acceptance of the pay deal that the 21% of "losers" had been the very people who had concentrated their time and efforts."

76. The Tribunal concluded its analysis of objective justification by saying this (para.7.69):

"Mr Galbraith-Marten is also right to say that the Union has the freedom to set its own priorities but that is where Lord Devlin's definition of freedom quoted by us above becomes most important. The law has to balance union officials' freedom to set priorities against its duty to all of its members. If the officials do not agree with the priorities that the British and European Legislature impose upon employers and the balance which has been struck by the law, the Union is not "free" to disregard the rights of a sector of its members because it has different priorities and to be relieved of its obligations towards those members to use its best endeavours to compel their employer to comply with its obligations under the Equal Pay Act. It can with their consent draw a line under "the past" but not ignore it or devalue its importance to a negligible level. Still less is it free to procure the acceptance or acquiescence of those members by a marked economy of truth in what it says and writes to them. It is for those reasons that we cannot accept that what the Union did in this case was a proportionate means of achieving a legitimate aim."

77. We confess that we have some difficulty in understanding this particular paragraph in the light of the earlier acceptance that the aim of the union was legitimate. Here the Tribunal appears to be saying that it is not in fact legitimate to strike the balance in favour of losers in the job evaluation exercise, not at least without the fully informed consent of those who thereby lose out on back pay. OwHO Mr Cavanagh submitted that it was a misdirection for the Tribunal to say that the union was not entitled to fix its priorities in the way it did.
78. We are inclined to agree. There will inevitably be many situations where a union has to press for the interests of one group of its members at the expense of another; it cannot possibly always support members equally, and that is something which would be fully understood by any union member. Pressing for pay increases at the risk of redundancies is an obvious example. But we need not explore this point further because Mr Stafford accepts that whilst this paragraph of the Tribunal's decision is somewhat problematic, he does not suggest that o the Tribunal was intending to say that the aim which the union was seeking to achieve was of itself illegitimate. He submits that reading the judgment fairly, it was plain that the Tribunal found that the union were seeking to achieve a legitimate objective. They were entitled to adopt the priorities that they did, but the means adopted to achieve those priorities were disproportionate.
79. Mr Cavanagh submits that the Tribunal's analysis is defective in a number of ways. First, he contends that the Tribunal did not in reality ask whether the union's response was proportionate but rather concerned themselves with the way in which they, the members of the Tribunal, thought the negotiations should have been conducted. Effectively they descended into the negotiating arena. He submits that it simply is not legitimate for the Tribunal to second guess the attitude and negotiating stance struck by experienced union officials. It was pure speculation, for example, to assess whether the council might or might not have found the means for meeting a stronger demand for back pay. More specifically, there are legal restrictions on the ability to sell capital assets which the Tribunal seem to have failed to appreciate. Nor was the Tribunal entitled to act on its own assessment of whether the claims would be successful.
80. He was also critical of the conclusion that there had been manipulation by the union. They had negotiated an agreement with the council and it was perfectly legitimate for them to seek to sell that agreement to their members. They could not possibly adopt a stance which would undermine the deal they had struck with the council. If they thought this was in the best interests of their members as a group, they were entitled to try to encourage its acceptance from all groups within their membership. There will be many situations where a union has no option other than to adopt a strategy which will be to the detriment of a group of its members. Moreover, there was evidence that Stefan Cross was widely advertising the alleged value of the claims. This would have alerted the members to the alleged value of the claims, and yet the Tribunal made no reference to this.
81. Mr Stafford disputes all of this. He submits that the Tribunal were fully entitled to reach the conclusion they did. The union had a legitimate objective but they had to achieve that objective by proper means. What they had done here was to gain their objective by negligence, mis-information, and the deliberate manipulation of these workers. That could not conceivably be a justified approach.

Conclusion and Discussion.

82. We do not accept all of Mr Cavanagh's criticisms of the Tribunal, although some are well made. They were entitled in our view to be critical of the manner in which the women claimants were treated; we do not say that we would necessarily have seen matters in the same way, but the Tribunal were entitled to make their own assessment of the union's conduct in the light of all the evidence. We do accept, however, that the Tribunal did in parts of its judgment effectively substitute its own view about how the negotiations should have been processed for that of the union.
83. However, in our judgment the Tribunal fell into a more fundamental error. The confusion lies in failing carefully to analyse what is required to establish objective justification. The question is whether the means to achieve the objective are proportionate to that objective. It is not, as Mr Stafford submits, whether the actions of the union are otherwise lawful or achieved without negligence, or in a morally acceptable way. The concept of proportionate means is not focusing upon whether the union has or has not conducted itself appropriately. The issue is whether the difference in treatment can be justified as a proportional response to a legitimate objective.
84. It may be - we do not have to decide and we merely raise it as a possibility - that some of these women would be able to sustain a case of breach of an implied duty of fair representation or perhaps causing them loss through misrepresentation. But in our view that does not affect the analysis of whether or not there is indirect discrimination. We think this can be demonstrated by considering the particular areas where the Tribunal were critical of the union.
85. Take the complaint that there was undue delay in dealing with these claims and inadequately pressing the council. Even if that is true, it does not in our view demonstrate any discrimination. Had the council been pressed more firmly then, if the Tribunal were right, the Council might have found further funds to meet the union's demands. But if the balance struck by the union was a legitimate one, then any extra monies would still have been distributed according to that balance.
86. There would be no justification in assuming that the excess would be used to pay off the back pay in preference to the other objectives. In other words, some of the weaknesses in the union strategy identified by the Tribunal were simply directed at the Tribunal's perception that there was a failure to maximise funds available for union members. If the criticism is sustainable, it may demonstrate a negligent approach in failing to achieve the best for the membership. However, it does not in our judgment begin to identify any specific failure to adopt means which were proportional to the objective reflected in the priorities adopted by the union.
87. Perhaps the most powerful argument in the claimants' favour is the contention that there was misleading information given to the members, and that they were manipulated by the union. We have reservations about whether the criticisms of the union's letter to the women were wholly fair, but even assuming that they were, the issue is how this renders the action unlawful indirect sex discrimination. To answer that it is in our view helpful to focus upon what would have occurred had accurate information been provided, and had no manipulation taken place.
88. The Tribunal estimates that many of these women would have withheld their support for the union's stance had they appreciated the extent of their sacrifices. If that were so then the union would either have had to modify its stance by changing its priorities, or continue to adopt the same basic strategy and risk alienating this group of members. If they had done the former, it would not have involved the adoption of different means to obtain the same objective. It would have involved having to adopt a different objective and one which gave greater weight to the interests of those seeking back pay. If it had adopted the latter position and had continued to adopt the original strategy notwithstanding the greater level of dissent, there would have been no change in the objective and no change in the means designed to achieve it.
89. In short, the fact that the objective might be achieved by using unlawful, even dishonest, practices does not necessarily mean that the means are disproportionate once it is accepted that the aim itself is legitimate.
90. This may be illustrated in the following way. Take an employer who deliberately tells an employee, in order to avoid potential litigation, that a fellow worker, equally rated under a job evaluation scheme, is receiving the same pay when in fact he is receiving more. Assume that the reason for the higher pay is the need to attract that particular skill in the market i.e. a market forces argument such as was in principle found acceptable in the Enderby case. It seems clear to us that market forces will remain a justification notwithstanding the employer's misrepresentation. The misrepresentation might have caused the employee in receipt of the lower pay not to resign, or not to make a claim to a tribunal which would otherwise have been made. It may give rise to a cause of action in its own right. It does not, however, alter the fact that the difference in pay is for a reason which is objectively justified, namely the need to have regard to market forces. It is reasonably necessary to pay more to secure the services of the employee; that fact is not altered by the unjustified conduct of the employer.
91. Once it is accepted that the objective or aim was legitimate, then in our judgment it is difficult to see how it can be alleged that the means were inappropriate. The policy or practice under consideration involved determining priorities. There are not, in truth, different means of achieving that objective. In so far as the means involve giving greater weight or influence to the interests of the back payers, they simply change or distort the objective. This is one of those cases where the identity of the objective in substance determines the means.
92. Another such case was Barry v Midland Bank [1999] ICR 842. In that case the issue was whether employers were discriminating against certain females in the way in which they calculated redundancy payments. This was done as under the statutory scheme by focusing on the salary at the time of dismissal. Some women who had earlier worked full time but at the time of dismissal were working part time contended that this meant that they were not getting the full reward for their service. They would have completed years of service working full time and yet their redundancy would be calculated on a part time basis, thereby failing to give full credit to their service. It was accepted that the reason for fixing the payment by reference to final salary was in part to cushion the redundant workers from the loss of income that would flow from being made redundant. The focus was therefore not on past service but, at least in part, on future loss.
93. Four members of the House of Lords held that there was in fact no discrimination at all on these facts, (for reasons which we suggest are not dissimilar to the approach in Rutherford). Lord Nicholls considered that there was prima facie indirect discrimination but concluded that the method of determining pay was objectively justified. Once the aim of cushioning against future loss was seen as legitimate, relating compensation to the actual pay received at the date of termination was inevitable. The way in which the women said the pay should be calculated, namely by reference to the service over the whole period of employment, would inevitably have involved adopting a different scheme and would have undermined that particular objective. Lord Nicholls expressed himself thus (page 872):

"In these circumstances I agree with the Court of Appeal that the

bank's scheme is lawful. Its objects are of sufficient importance

to override the weight to be given to the fact that under a different

scheme with a different object a group of employees, mostly

women, would be better off. To decide otherwise would be to

compel the bank to abandon its scheme and substitute a scheme

where severance pay is treated and calculated not as compensation

for loss of a job but as additional pay for past work. That could not

be right."

94. Similarly here: the object of the policy was to give as much emphasis as possible to the interests of those who lost out on the new job evaluation scheme. Mr Stafford did not dispute the legitimacy of that objective. The union might have increased the cake available to all, and the Tribunal was critical of it for failing to do so.
95. The union might also have misled some of the members into accepting the priorities without a full understanding of what that involved and, in particular, without appreciating what they were personally sacrificing. But that is not suggesting that other more proportional means could have been used to achieve the same objective. Rather it is saying that had the union acted properly, the objective might not have been reached at all and some other objective would have had to be adopted.

Victimisation

96. The relevant legislation is s.4.of the Sex Discrimination Act which is as follows:

"Discrimination by way of Victimisation

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970 …

97. The Tribunal dealt with this issue very briefly, and in what appears to us to be a somewhat confusing and inconsistent manner. They defined the protected act as joining the Surtees multiple i.e. commencing the litigation. That is plainly a protected act, as Mr Cavanagh concedes. The Tribunal then defined the acts of discrimination alleged, which were apparently identified in the course of the hearing itself, as follows (para 5.5.2):

"The acts of discrimination alleged were:

a. Scaring the claimants into giving up their rights with threats of job losses.

b. Failing to provide assistance or ongoing entitlements afforded to other members taking the view that as the members had elected to instruct an external solicitor, they should no longer receive the same ongoing entitlements as other members."

98. It then reached certain conclusions with respect to both these issues as follows (paras 5.54 -55):

"5.5.4 With regard to the threat of job losses, Mr Galbraith-Marten convincingly submits that everyone who had not, as well as everyone who had, joined the Surtees multiple were informed of the Union's fear that job losses would result. There is, therefore, no less favourable treatment at all. We agree.

5.5.5 As for failing to provide assistance in the sense of representation and advice he says this was the cause of the claimants doing the protected act and cannot therefore be the consequence of it. We agree. Further, he says that subsequent to them joining the Surtees multiple they did not ask the Union for any assistance and he adds the obvious point that a claimant cannot have two representatives on the record simultaneously in proceedings. Again we agree."

99. The impression given is, therefore, that the two claims fail, and for convincing reasons.

However, the Tribunal then added a further observation with respect to another potential act of discrimination which was colloquially described as the "me too" demand. As we understand it, this referred to the fact that the union reminded the council of a 'concordat' between them the effect of which was that the union members who had not sought to litigate their equal pay claims should receive the same as those who did and were successful. Early in its judgment the Tribunal expressed the view that this was the "hardest point" for the Council to overcome with respect to the victimisation claim (para 5.56).

100. The Tribunal then returned to the issue of victimisation later in its judgment. It dealt more fully with the "me too" demand. The Tribunal pointed out that in circumstances where there are limited funds, to remind the council that all members should be treated the same inevitably meant that those litigating were prejudiced. The payments which might otherwise be made to them following negotiations by Mr Cross would have to be reduced in order to accommodate the other union members in a similar position who had not lodged claims. The Tribunal felt that they were compelled by authority, and in particular the case of Nagarajan v London Regional Transport [2000] 1AC 501, to conclude that this was unlawful victimisation discrimination.
101. Mr Stafford did not seek to support this conclusion. We think he was right not to do so. There was no less favourable treatment of these women by reason of the fact that they had lodged their claims. On the contrary, the union was simply seeking to ensure that all were treated equally favourably by the council, whether they had commenced litigation or not. The fact that the claimants were affected by this reminder from the union – assuming that a reminder was necessary to ensure that the council acted in that way – did not amount to victimisation.
102. The Tribunal then returned to the complaint that the union had victimised these members by not assisting them. They said this:

"77 Further the omission to lift a finger to help people in the position of Mrs Allen (see paragraph 3.45) was in part due to them having "defected" to Mr Cross. Mr Galbraith-Marten is quite right to say that the Unions inactivity was the cause of the defection but that does not exclude there being consequences of it as well. The claims of the APT & C workers were as far as Mrs Bartholomew was concerned "unfinished business". The fact that the Union disapprove of the method of litigating to enforce a member's right in given circumstances does not mean that they would normally omit to collaborate with that member or her representative to achieve a fair outcome for that member as well as for those who did not defect. But in this case the moment anyone signed up with Mr Cross nothing more was done for them at all and in fact they were portrayed to other union members and to the Council as self-centred money grabbers."

103. The conclusion that the union's activity was both cause and consequence directly conflicts with the conclusion at para 5.56 (see para 95 above.) Moreover, the Tribunal did not refer to the obvious point, which they had earlier accepted and was emphasised by Mr Cavanagh, namely that the union could not in any sense seek to act in the litigation for these members who had chosen to go to an outside solicitor. They were under an obligation thereafter to treat them no differently from any other union member, but there was no evidence that they did so. For example, there was no evidence, and it was never suggested, that the union had sought in its collective negotiations with the employer to distinguish between those who elected for Mr Cross and those who had not so as to treat the latter less favourably, not even with respect to back pay.
104. If the finding were indeed that nothing was done for these members in some other area as a result of their taking litigation, then there would be considerable force in the conclusion that there had been victimisation. However, it is plain that what the Tribunal are in fact referring to is not a failure to promote the interests of the claimants in areas outside their equal pay claim but only in the failure to support them in that litigation. It was not apparently suggested at any stage that they had been differently treated from other members in any other way.
105. In the circumstances Mr Stafford did not seek to support the Tribunal's conclusions on this aspect either. He accepted that the facts underlying their conclusion, and their legal analysis, were inadequately set out in the Tribunal's reasons. However, he submitted that the issue of the failure to support the claimants should be remitted to the Tribunal.
106. We reject that submission. In our view there is simply no evidential basis on which the Tribunal could properly conclude that the union had victimised these claimants by failing to provide them with support.
107. We should add this. In the paragraph dealing with the lack of support the Tribunal refers to the fact that the union treated the claimants as "self-centred money grabbers". We entirely accept, as Mr Stafford submitted, that this would in our view be capable in principle of constituting detrimental treatment in the context of victimisation discrimination. That much is clear from the decision of the House of Lords in St. Helens Metropolitan Borough Council v Derbyshire [2007] IRLR 540. However, the Tribunal has not in our view reached the conclusion that this was itself the basis of a separate finding on discrimination. Even more importantly, it was not a complaint which was ever put by the claimants before the Tribunal. It was not the basis for an allegation of victimisation at all.
108. In our judgment, it would not have been open to the Tribunal to make a finding of victimisation on such a serious basis without the issue being clearly identified so that the parties could give evidence and make representations about it. This is not a technical matter but goes to the substance of a fair hearing. The point was put unequivocally by Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 (at para. 42), in connection with a race discrimination case:

"Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complaint under s.56 (1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

Balcombe LJ made observations to like effect: see para 33.

109. In our judgment, this principle is applicable here. There was no separate victimisation complaint of this nature, and accordingly if the Tribunal were intending to treat it as a separate complaint – and we do not in fact think that they were – then they were wrong to do so. This is not simply a matter of lack of adequate reasons as Mr Stafford suggests; it goes to the fairness of the legal process.

Disposal.

110. It follows that in our judgment the Tribunal erred in finding either indirect or victimisation discrimination. The appeal succeeds on both grounds. We substitute a finding that there has been no unlawful discrimination.