At the Tribunal | |
On 17 June 2008 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
UNISON GMB |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID READE (One of Her Majesty's Counsel) and Mr SEAMUS SWEENEY (of Counsel) Instructed by: Mr R C Rayner City Solicitor Sunderland City Council Legal Services PO Box 100 Civic Centre SUNDERLAND SR2 7DN |
For the First Respondents | MR PHILIP ENGELMAN (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road NEWCASTLE-UPON-TYNE Tyne & Wear NE4 8AW |
For the Second and Third Respondents | MR ANTONY WHITE (One of Her Majesty's Counsel) and MR JASON GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street NEWCASTLE-UPON-TYNE NE1 1TH |
SUMMARY
PRACTICE AND PROCEDURE:
Preliminary issues
EQUAL PAY ACT
Material factor defence and justification
This case involves complicated equal pay claims against the council in which different claimants (some 1050 in all) compare themselves with a range of comparators. There are also discrimination claims against the two trade unions. The claims relate to two periods, one pre-October 2005 and the second after that date. There were separate GMF defences with respect to each period. A hearing with respect to both was ordered on the premise, accepted by the council, that the jobs were either of equal value or had been rated as equivalent in a job evaluation study (JES). Subsequently the lawyers for the claimants indicated that they wished to amend the claim to challenge the validity of a JES. The basis of the claim for many of the claimants had hitherto been that this was valid and that they had been rated equally with their chosen comparators under it. In the light of this proposed amendment the employers sought to have the GMF hearing stayed until the application to amend, and the determination of the JES challenge if the amendment was permitted, had been determined. The Employment Tribunal resolved to adjourn consideration of the amendment and to continue with the GMF hearings.
The EAT held, contrary to the submissions of the employers, that the Tribunal was entitled to take the view that the hearing should continue with respect to the GMF defence pre-October 2005 since that would remain in issue whatever the outcome of the JES challenge. However, the Tribunal did not act reasonably in determining that the post 2005 GMF defence should also be determined. There were potentially significant adverse consequences if that were to be decided against the employers and the challenge against the JES were subsequently to be accepted and prove successful.
The order of the Tribunal was varied so that at the resumed hearing it should only hear and determine the pre-October 2005 GMF defence.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background.
The procedural history.
The law.
"(a) Is the order made one within the powers given to the tribunal? (b) Has the discretion been exercised within guiding legal principles)? … (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223?"
The grounds of appeal.
Discussion.
Disposal.