United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN TRUSCOTT QC (One of Her Majesty's Counsel) Instructed by: City of Edinburgh Council Legal Services Division City Chambers High Street Edinburgh EH1 1YJ
For the First Respondent For the Second Respondent	MS JANE McNEILL QC (One of Her Majesty's Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle-upon-Tyne NE4 8AW MR R ALLEN QC (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors Berkley House 285 Bath Street Glasgow G2 4HQ


 


SUMMARY

PRACTICE AND PROCEDURE: Costs

EQUAL PAY ACT: Equal value

Equal Pay claims. Local Authority employee Claimants. Section 1(6) of Equal Pay Act 1970. Article 141 EC. Circumstances in which EAT, upholding cross appeal, found that Employment Tribunal had erred in failing to hold that Claimants (APT&C employees) and their comparators (Manual Workers) were employed at the same establishment. Otherwise, employers' appeal dismissed, EAT holding that ET was correct to hold that Claimants and their comparators were employed on common terms and conditions, namely the "Red Book" notwithstanding that job evaluation studies not completed and, accordingly, employees not yet on new pay and grading arrangements provided for in the Red Book. Dumfries and Galloway v North and ors revisited and views revised.


 


THE HONOURABLE LADY SMITH

Introduction

1. This is an appeal by a local authority employer in a group of 52 equal pay claims brought by women employed in a range of posts which used to be classified as "Administrative, Technical, Professional and Clerical" ("APT&C") including jobs in schools, hostels, libraries and social work. They seek to compare themselves with men employed in posts which used to be classified as "Manual" including jobs as refuse collectors, gardeners, gravediggers and roadworkers.
2. All Claimants claim that they were and are employed on work of equal value to their male comparators.
3. Following a pre-hearing review, the Employment Tribunal sitting at Edinburgh, Employment Judge Mr K McGowan, in a judgment registered on 1 October 2008, determined that:

"(1) The Claimants are in the same employment as the comparators for the purposes of Section 1(6) of the Equal Pay Act 1970 ; and in the alternative

(2) (i) the Claimants and the comparators are in the same service and/or

(ii) there a (sic) single source of pay which is applicable both to Claimants and the comparators in terms of Article 141 of the Treaty of Rome, as supplemented by Article 1 of the Equal Pay Directive (Council Directive 75/117)."

4. The Appellants, to whom I will refer in this judgment as "the Council", were represented by Mr I Truscott QC before the Tribunal and before me. The first set of Claimants, to whom I will refer as the "Stefan Cross Claimants" were represented by Ms J McNeill QC before the Tribunal and before me. The second set of Claimants, to whom I will refer as the "Thompsons Claimants" were represented by Mr S Gorton, Barrister, before the Tribunal and by Mr R Allen QC, before me.
5. There is a cross appeal on one issue, at the instance of the Stefan Cross Claimants, in respect of the Employment Tribunal's rejection of their argument that they and their comparators were employed at the same establishment.

The Issues

6. Both sets of Claimants contended that they were employed on work of equal value to certain comparators; it is trite that assessment of equality under the equal pay legislation is, essentially, an exercise in comparison. The relevance of their chosen comparators was put in issue by the Council.
7. For the purposes of section 1(2) of the Equal Pay Act 1970 the Claimants required to show that their comparators were in the "same employment" as them, meaning that they were:

"employed by her employer or any associated employer in the same establishment or establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes." (Equal Pay Act 1970 s.1(6)).

8. The issues that thus arose for determination at the pre-hearing review can be shortly stated as follows:

(i) Were the Claimants employed at the same establishment as their comparators? If so, they and their comparators were, in terms of the statute, in the same employment and that means that the comparison they sought to draw was relevant.

(ii) If the Claimants and their comparators were employed at different establishments, were those establishments ones at which common terms and conditions were observed either generally or for employees in the Claimants' or comparators' classes? If so, again, the Claimants and their comparators were, in terms of the statute, in the same employment and the comparison was a relevant one.

9. The Claimants also seek to advance their claims under reference to Article 141 of the EEC Treaty (formerly Article 119), which has direct effect (Defrenne v Sabena (No 2) [1976] ECR 455 ECJ) and which provides:

"(1) Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied ."

10. The issues that arose under their Article 141 case were:

(i) Were the Claimants and their comparators employed in the same service?

(ii) Were the Claimants and their comparators employed in circumstances where their pay and conditions and those of their comparators were attributable to a single source?

11. Both these issues were raised under reference to the cases of Defrenne, Lawrence v Regent Office Care Ltd [2002] IRLR 822, and North Cumbria Acute Hospitals NHS Trust v Potter & Ors [2009] IRLR 176. The Claimants contended that if either (i) or (ii) were answered in the affirmative, that was sufficient.

Background

The Formation of the Council

12. The Council was formed on 1 April 1996 and is a statutory successor to the former Lothian Regional Council and the former Edinburgh District Council. Employees transferred across to the Council, along with their relevant previously agreed national and local terms and conditions.

Claimants' and Comparators' Work

13. I summarise, under this head, the Tribunal's findings about the work performed by the Claimants and their comparators respectively, bearing in mind the issue as to whether or not they were employed in the same establishment. Whilst Mr Truscott QC, on behalf of the Council, was critical of the Employment Judge's failure to make findings that specified the work base and workplace of the comparators, no application was made by the Council for a note from the Employment Judge of any such evidence. I proceed, accordingly, on the basis of such findings in fact as were made.
14. First, the Council is a body corporate established by statute (Local Government (Scotland) Act 1994) for the performance of a wide range of statutory duties and vested with a wide range of statutory powers. They have an organisational structure which involves their work being carried out through different departments. The Employment Judge did not make any specific findings in fact about these matters but they are within judicial knowledge, as is the denomination of the Council's departments as at the present date.
15. Secondly, the Claimants and their comparators are all employed by the Council.
16. Thirdly, I note from the list of Claimants and their jobs that although they are all former APT&C employees, they are and have been employed in different departments. Considering those job titles and the Council's current departmental structure, they would appear to involve the work of at least Children and Families, Health and Social Care and Services for Communities. The Claimants work at different locations around the city. They are assigned to a particular work location but under contracts of employment which contain "mobility" clauses, the import of which is that they could, under their contracts, be required to work anywhere in Edinburgh; typically, their contracts indicate where they are to work "initially" but state expressly that they could be required to work at any workplace within the Council. The Council's departments appear each to cover the implementation of more than one of their statutory duties and the exercising of a range of their statutory powers. The Council's departmental structure has changed from time to time and it is evident from a letter in the Cross Claimants' bundle, to which Ms McNeill made reference in the course of her submissions, that they have had different titles in the past and it seems that there were some differences in the dispersal of service delivery amongst them.
17. Fourthly, I note that the proposed comparators, who are former Manual Workers, would appear all to be employed to carry out the work of what is presently called the Services for Communities department. As above noted, some of the Claimants also appear to be involved in the work of that department. The nature of the comparators' jobs obviously involves them moving around the city to carry out their work, no doubt from a particular base. In some cases, the comparators such as gardeners or refuse collectors would obviously carry out work at the premises where Claimants were employed. Like the Claimants, their contracts contain mobility clauses.
18. Fifthly, I note that no findings in fact were made as to the reasons for the allocation of functions to different departments, as to whether or not there is cross departmental working for any purposes (as might be expected as between Children and Families, and Health and Social Care, for instance), as to the organisation within departments, as to the way in which premises are allocated or used by and as between departments, or as to staff management, and so on.
19. In summary, therefore, the picture is of (a) a system of allocation of employees to departments which did not and do not directly reflect the performance of a single statutory duty or the exercise of a single statutory power, (b) a group of women carrying out the work of different departments at different locations around the city in circumstances where they could be required to move to another work location, (c) at least under reference to the current departmental divisions, some of those women carrying out the work of the same department as their comparators and, possibly, work related to more than one department, and (d) a group of men employed in the work of a single department, based at different locations in the city to perform work at different places around the city in circumstances where they could be required to move to be based at another workplace base in the city.

Collective Bargaining Pre 1999

20. Prior to 1999, each of the two groups of employees to whom the Claimants and their comparators belong had distinct trades' union representation and collective bargaining was carried out separately. The APT&C employees had their own, separate, negotiating body (the National Joint Council for Local Authorities' Administrative, Professional, Technical and Clerical Services). Similarly, the Manual employees had their own, separate, negotiating body (the National Joint Council for Local Authorities' Services (Manual Workers)). The negotiations in respect of the APT&C employees had produced a collective agreement that was known as the "Blue Book" which contained a scheme of salaries and conditions of service. The negotiations in respect of the Manual employees had produced a collective agreement that was known as the "Green Book" which, similarly, contained a scheme of pay and conditions of service. In addition, both books contained the constitutions of each of the above Joint Councils.
21. In about 1996, negotiations had begun to seek to achieve a single status collective agreement which would apply across the board to both the APT&C and Manual employees. The Employment Tribunal heard evidence and, at paragraph 16, made the following finding in fact regarding this background:

"The background to the introduction of the Single Status Agreement both in the UK (other than in Scotland) in 1997 and Scotland in 1999 was the discriminatory pay practices, recognised by both employers and trades unions arising out of the differences in treatment between the groups then categorised as Manual workers and APT&C staff, in particular with regard to bonus payments and working hours. The drive was to harmonise terms and conditions of employment. It was agreed that there was a need for a single national agreement applying to both categories of worker. There was a need for national bargaining in vital areas and a better deal for female workers via an equality- proofed Job Evaluation Scheme ("JES"). It was agreed between the employers and trades unions that there was widespread pay discrimination and that the only alternative to litigation was a new national agreement and the introduction of a non-discriminatory JES."

The Red Book

22. The drive to which the Employment Judge refers led to a new collective agreement covering all employees both APT&C and Manual, entitled:

"SCOTTISH JOINT COUNCIL FOR LOCAL GOVERNMENT EMPLOYEES

National Agreement on Pay and Conditions of Service"

23. It is known as "the Red Book". It came into force on 1 July 1999. It has four parts: "Principles", "Key Scottish Provisions", "Other National Provisions" and "Joint Advice". The separate "Blue Book" and "Green Book" councils ceased on that date. All collective bargaining has since been carried out between the trade unions as a single group and a new Scottish Joint Council for employer local authorities in Scotland on a single table basis. The constitution of the new Joint Council is contained in the Red Book. There is an introductory section prior to those four parts entitled "Implementation Agreement". It reads as indicating that it must have been agreed to before the other provisions in the Red Book but it was a matter of agreement that it is now bound up as part of the Red Book and is included in the "Contents" list. There can be no doubt that the Implementation Agreement is part of the Red Book. Its first two paragraphs are as follows:

"1. This provides for the implementation of the agreement between the Scottish Employers and the Trade Unions to a) introduce a new Scottish agreement in place of the APT&C handbook (Blue Book) (including provisions for Nursery and Residential staffs) and the manual handbook (Green Book), and to b) merge the existing negotiating machinery for APT&C and Manual Workers.

……….

2. From 1 July 1999 the Scottish agreement for former APT&C and Manual employees will consist of a new handbook to be known as the Red Book. It will comprise the following four parts…"

24. Paragraph 3 of the Implementation Agreement explains that Part 3 contains "other Scottish provisions" which may be modified locally but any negotiation in respect of such modification will not be carried out in the same manner as under the Blue Book and Green Book; as of 1 July 1999, negotiation will be "between the council and the unions". Whilst "council" is a reference to the individual local authority, so far as the other side of any such negotiation is concerned, as of 1 July 1999, there was to be no separate negotiation with unions representing the APT&C employees and Manual Workers. Indeed it is spelt out in paragraph 4 of the Implementation Agreement that references will no longer be made to APT&C and Manual Workers; all are to be referred to simply as "employees". It is provided that single table bargaining is to operate as of 1 April 1999 so as to enable the winding up of the Blue Book and Green Book Joint Councils prior to 1 July 1999.
25. Whilst recognising that the Red Book does not in itself alter existing local arrangements (see Implementation Agreement, paragraph 6), the Implementation Agreement provides that where existing contracts of employment incorporate prior APT&C and Manual Worker collective agreements, those references "will now be" (see paragraph 5) to the new Red Book; employees are to be informed on an individual basis.
26. I turn to the matter of the salaries of the APT&C employees and pay of Manual Workers. Under the Blue Book, the APT&C employees were paid according to their position on a 73 point spine. Their salaries were expressed annually. Manual Workers were paid according to a different system. For them, there was a table which provided for 8 numbered grades and a weekly rate was shown for each grade. The weekly rates shown for the Manual grades 1 to 8 were broadly equivalent to the annual salaries paid to the APT&C employees on spinal points 3 to 10. Those were the pay scales that had been generated following job evaluation studies carried out in the 1980's and are set out in the Red Book at the end of the Implementation Agreement. Thereafter, however, collective bargaining on behalf of the Manual Workers produced a system whereby certain bonuses, including fixed bonuses, were paid to them in addition to the relevant grade rate set out in the Green Book table. Those workers were almost exclusively men. The employees in the relevant APT&C group were predominantly women. It is, as I understand it, those bonus payments that lie at the heart of the complaint of unequal pay in these, and many other, cases both north and south of the border.
27. A key feature of the Red Book is that all employees are to be paid in accordance with their placement at a point on a new 123 point Scottish pay spine (Part 2, paragraph 5.2). That could not be achieved without up to date job evaluation and so the Red Book, accordingly, provides for fresh job evaluation studies to be carried out. Some local authorities in Scotland have completed them. The City of Edinburgh Council has not yet done so notwithstanding the fact that the Red Book expressly states that all councils were expected to have completed the requisite job evaluation exercise by 31 March 2004 (Part 3, paragraph 1.3).
28. What about pay arrangements in the meantime? The Red Book provides the answer. Paragraphs 11 and 17 of the Implementation Agreement state:

"11. The grading structures for former Manual Workers and former APT&C staff will remain in effect until superseded by local arrangements following job evaluation……………

17. From 1 July 1999 the Conditions of Service for new and existing employees will be as set out in the Red Book but, as stated in paragraph 11, until the job evaluation exercise has been completed the existing grading provisions and pay rates for APT&C Staff and Manual Workers will continue to apply unless superseded by local arrangements."

29. I note that those two clauses use language of obligation. They read as binding commitments by the Council.
30. Then, in Part 3 of the Red Book, at paragraph 1, there are specific transitional provisions:

" 1.1 Scottish grading provisions of the former Manual Worker's Agreement and the former APT&C Agreement as at 30 June 1999 and the former APT&C scales remain as part of the new Scottish agreement until superseded by local arrangements following job evaluation. The enhancement provisions as contained in the former APT&C and Manual Worker Schemes will remain in place until superseded by local negotiations. These provisions are shown in the appendices to Part 3.

1.2 Until the job evaluation exercise is completed the existing spinal column for APT&C Staff and the weekly rates for Manual Workers Grades 1-8 (which on an annualised basis are points 3-8 of the existing spinal column for APT&C Staff) will be updated at 1 April in any year in line with any pay increases which are negotiated."

31. The reference in paragraph 1.2 to annualised rates for Manual Workers was evidently in recognition of the fact that since single table negotiation was in place as from 1999, all pay rates required to be approached on the same pay period basis in the transitional phase. Hence the finding of the Employment Judge at paragraph 24 that, as of July 1999, all former Manual Workers were "moved onto the single spinal column in the Red Book". That is plainly a reference to the old 73 point spine and the procedure that is envisaged by paragraph 1.2 above whereby as of 1 July 1999 and pending the completion of job evaluation, the only pay scale that would be annually updated would be the "old" APT&C spine. Thus, the Manual Workers' grades required, for these interim purposes, to be equiparated to points on that spine, which is what happened. A brief arithmetic check shows that annualisation of the weekly rates for the Manual grades 1-8 matches the annual salaries for spinal points 3-10 provided the weekly sums are rounded up. The Council sought to suggest, in their second ground of appeal, that the Employment Judge erred in the above finding but that criticism can readily be rejected. It was not disputed that the former Manual Workers' rates were annualised after 1 July 1999 in the sense that their rates were arrived at by starting with spinal points 3-10 and then dividing the sum for each point by 52.14 to find a weekly figure for each of the former Manual Workers' grades. An example of that is found in a letter of 20 June 2006 from Scottish Joint Council for Local Government Employees to all local authority Chief Executives (p.240 of the Cross Claimants bundle) and it is to that interim system that the Employment Judge is obviously referring. He is not suggesting that the former Manual Workers had been moved onto the new 123 point spine; that plainly cannot be achieved until the Council complete their job evaluation studies.
32. So far as annual pay negotiations after 1 July 1999 are concerned, the Convention of Scottish Local Authorities (COSLA) have been involved but, as was accepted by the Council's Mr Allan in evidence, the Council retained the power to set pay rates.
33. The Red Book contains various other provisions, some of which are expressed in terms of recommended action or statements of principle and some in absolute terms that differ from the Blue Book and Green Book provisions. As to the latter, for instance, paragraph 10 of Part 2 to the Red Book contains a series of significant provisions relating to qualification for sickness allowances which are new and different from the provisions of the Green or Blue Books and which applied as of 1 July 1999. Also, it provides that the standard working week is to be 37 hours for all employees (Implementation Agreement paragraph 15) and a clear statement that there is to be a phased reduction to 37 from 39 hours over a period, all as an indication of the commitment to single status. In common with the sickness allowance provisions, those provisions took effect in 1999 and were a departure from the previous position regarding working hours.
34. In summary therefore, a study of the Red Book shows that all local authority employers and Trade Unions representing both the APT&C and Manual categories of employee reached a very significant agreement in 1999, an agreement intended to affect all contracts of employment, not only those entered into after its inception. They agreed to dismantle and did dismantle the pre-existing separate collective bargaining system and committed themselves to a wholly new arrangement, the central axis of which was to be single table bargaining under reference to a new pay spine onto which all employees would be moved once the appropriate job evaluation studies were complete. Further, whilst it was recognised that there needed to be a workable system in the meantime, they did not prolong the life of the old Blue Book and Green Book councils. What they did was to adopt into the Red Book the pay and grading provisions of those 'old' books, subject to the annualisation adjustment to which I have referred above. Going forward, those provisions were then obviously going to have to be (and evidently have been) subject to annual pay negotiation between the unions and the new Scottish council on the new single table basis pending the completion of job evaluation.
35. As to the continuing life of the other, non pay related, provisions of the Blue and Green Books, whilst it has to be accepted that, as a matter of contract, individual contracts of employment would, in principle, remain unchanged, the standard contract of employment in use by the Council prior to 1999 included a provision whereby employees were put on notice that, from time to time, variations in the terms and conditions of their contract would result from collective bargaining and that they would be notified of such variations (see, for instance, Margaret Boyle's contract of employment, at p.201 of the appeal bundle). The mechanism was, accordingly, in place whereby new collectively bargained sets of terms and conditions, such as those arrived at by way of the Red Book, would be incorporated into their contracts. It is not, accordingly, surprising that a letter from the Council dated 7 January 2002, appointing one of the Claimants who was already in their employment (Ms Notman) to a new role, specifies that her terms and conditions of service will be in accordance with the Red Book, that being the collective agreement that contained terms and conditions which governed her employment. Similarly, the selection of post 1999 contracts of employment that were before the Tribunal all refer to employees' terms and conditions of employment being covered by existing collective agreements embodied not in the old Blue or Green Books but in the Red Book. Those contracts also spell out sickness allowance terms which reflect entirely the provisions of the Red Book. I note, further, that the Tribunal found that Mr Allan, a witness for the Council, did not claim that the Red Book was not in force; he could hardly have done otherwise.

Employment Tribunal

Same Establishment?

36. The Employment Judge concluded that the Claimants and their comparators were not employed at the same establishment. He approached the question as one of fact. He states that he considered it to be a multifactorial test. So far as single factors such as the mobility clauses and physical location were concerned, they were, he thought, relevant though not determinative. However, his conclusion was reached solely by reference to the matter of work location. He said that the different physical locations at which the Claimants and their comparators worked were distinct entities. The Employment Judge considered that he required to follow the EAT's adoption, in the case of Dolphin & Ors v Hartlepool Borough Council & Ors UKEAT/0559/05, of the approach to the interpretation of the word "establishment" by the ECJ in Rockfon [1996] IRLR 168. That approach, in the view of the Employment Judge, involved recognising that a distinction is to be drawn between an "establishment" and an "undertaking" (paragraph 436 of his judgment), with the former being a subset of the latter. Whilst the Council was a single undertaking since the Claimants and their comparators were assigned to different locations, they could not be said to work in the same establishment.

Employment on Common Terms and Conditions?

37. The Employment Judge approached this issue by asking (a) whether or not, as a matter of contract, the Red Book formed part of the terms and conditions of the contracts of employment of the claimants and their comparators, and (b) to what extent had the Red Book been brought into effect?
38. The Employment Judge found that the Red Book terms were contractual for all employees concluding, on the evidence he had heard, that it was likely that most employees knew that there were to be changes to their contracts, that it was clear, on the evidence, that the Council intended to incorporate the Red Book into their employees contracts since they had, in a particular report, adopted it, and also that it was inherently unlikely that the Council intended, after 1 July 1999, that new employees would be employed on Red Book terms but existing employees would be employed on the old Green and Blue Book terms.
39. As to whether and to what extent the Red Book had been brought into effect, the Employment Judge found that there was within it content which took immediate effect at the level of individual contracts, that vestiges of the Green and Blue Book were retained only on a temporary basis and that it did not matter that some parts of the Red Book had not yet been implemented (essentially those that were awaiting the completion of job evaluation studies). At paragraph 480, the Employment Judge comments:

"It is a matter of concession in this case that there is a relevant "enabling clause" in the contracts of the Claimants and comparators. In my opinion, the presence of an uncompleted contingency (supersession by local arrangements following job evaluation) does not mean that there was no general observation of common terms and conditions, particularly when the contingency or dependency argued for is restricted to the question of pay."

40. He went on to find that, in all the circumstances, after 1 July 1999, the Green Book and Blue Book terms and conditions were derived from the same collective agreement namely the Red Book and he held that the Claimants and their comparators were, accordingly, employed by the Council at different establishments to which common terms and conditions of employment apply generally or for employees in both the Claimants' class and the comparators' class. He made that finding under reference to the case of Leverton v Clwyd County Council [1989] ICR 33 HL.
41. The Employment Judge also held that, if the Claimants and comparators were not all employed on common terms and conditions the circumstances were that if men in the comparators' jobs were employed at the same establishments as the Claimants, they (the Claimants) would be employed on the same terms and conditions as those on which the comparators are employed. It seems fair to say that that was on the basis of hypothesis as to the possibility of men in the comparators' posts being assigned to work at the one of the same locations as the Claimants which was expressed in tentative terms. At paragraph 502, having referred to it being "not inconceivable" that, for instance, a gardener might, in the future, be assigned to work at a school where one of the Claimants worked, he concludes:

"That may be unlikely, but it is not inconceivable. Thus, I am satisfied that the hypothesis is one which is at least sufficiently realistic to be worthy of consideration."

The tentative nature of the conclusion need not, however, be of concern for reasons which I explain under the 'British Coal' section later in this opinion where the case of Dumfries & Galloway Council v North & Ors UKEATS/0047/08 is discussed.

Same Service?

42. The Employment Judge concluded, on a consideration of the authorities, that a broad approach was to be preferred and he approached it as being "in effect a jury question" (paragraph 512). He asked himself whether the idea that the Claimants and their comparators were in the same service offended against common sense and since it did not, concluded that they were.

Single Source?

43. Again, the Employment Judge approached this as a question of fact. The Council was responsible for negotiating pay and it did not matter that pay differentials dated back to agreements entered into by their statutory predecessors or that it did so through the medium of COSLA. The point was that they were the single source of the alleged pay inequality and they had the power to restore equal treatment in pay.

The Appeal

Submissions for the Council

44. The submissions on behalf of the Council can be summarised, as follows:

(1) The Blue Book and Green Book terms and conditions did not cease to have effect after 1 July 1999.

(2) The Employment Judge erred in law in finding that there was, after 1 July 1999, assimilation of the former Manual workers onto a single spinal column; the new single spinal column was only for use after implementation following completion of the job evaluation studies.

(3) The Employment Judge erred in relying on the content of individual contracts of employment which, after 1 July 1999, made express reference to the Red Book because such a reference gave an employee "no indication of pay or grading". It was a repeated theme of Mr Truscott's submissions that the Claimants' and comparators' pay and grading terms had not changed on 1 July 1999, and that they would not change until the job evaluation studies were complete and consequential new local arrangements had been entered into. The Red Book was, he said, but aspirational. He referred, in support of that submission to certain passages in the case of North Lanarkshire v Cowan UKEATS/0028/07 but very fairly recognised that the circumstances in that case were rather different. He also sought to draw support for his submission from the case of Griffiths & Moore v Salisbury District Council [2004] EWCA Civ 162 though more by way of illustration of the need for the supersession process to be complete before the new pay scales could be enforced than for any point of principle.

(4) The Employment Judge erred in law in concluding that the principle in Leverton applied in the circumstances of this case. The Claimants' and comparators' terms and conditions were not derived from the same collective agreement; essential elements of their terms of employment were missing namely those relating to pay and grading. This was a central plank of his submissions.

(5) The Employment Judge erred in law in relying on what he termed a concession by the Council; the point seemed to be that whilst the Council had made a concession, the Employment Judge had misunderstood it. However, Mr Truscott accepted that the Employment Judge had not relied on it. As I understand it, what the Council do concede is that once what they refer to as "supersession" has occurred (i.e. once job evaluation studies have been completed and all employees placed onto the new 123 point spine), the Claimants can compare themselves with their chosen comparators as they will then be employed on common terms and conditions deriving from a single collective agreement, namely the Red Book.

(6) The Employment Judge required to carry out an analysis of the Green Book terms and conditions and an analysis of the Blue Book terms and conditions and compare the two to see whether or not they constituted common terms and conditions and he erred in failing to do so.

(7) The Employment Judge had erred in finding that the Claimants and comparators were employed at different establishments at which common terms and conditions were observed for each of their classes of employee. Had he properly applied the test set out in British Coal Corporation v Smith [1996] ICR 515 HL and taken account of what was said by the Court of Appeal in South Tyneside Metropolitan Borough Council v Anderson [2007] IRLR 715 CA at para 6, he would have found that the Claimants and comparators were not in the same employment.

(8) Further, the Employment Judge had reached his conclusion that the comparators would have been employed at the Claimants' establishments on Green Book terms and conditions without there being any proper basis in the evidence to do so. Mr Truscott accepted, however, that the present case was not on "all fours" with the circumstances in the Dumfries and Galloway case.

(9) The Employment Judge had no jurisdiction to apply Article 141 of the EEC Treaty in a "freestanding" manner. The Employment Judge should have, in the first instance, restricted his considerations to determining the issues that arose under the domestic legislation. If he found against the Claimants on those issues, then Article 141 would not remain as a triable issue. He questioned whether Article 141 could properly be relied on as an alternative approach given the statutory restriction of the Employment Tribunal's jurisdiction to cases brought under specific legislation, in this case the 1970 Act; the Tribunal had no inherent jurisdiction which would allow it to consider the Article 141 point as a separate claim: Staffordshire CC v Barber [1996] ICR 379; Barry v Midland Bank PLC [1997] ICR 192. As a generality, the Council sought to challenge any approach which, as Mr Truscott put it sought to "wash away" section 1(6) of the 1970 Act whilst recognising that if it was a matter of section 1(6) being inconsistent with Article 141 then the task was to disapply, mould or adapt the offending provision: Autologic Holdings plc v Inland Revenue Commissioners [2006] 1AC118.

(10) The Employment Judge erred in concluding that the Claimants and comparators were in the same service. His finding was not supported by adequate findings in fact or reasoning. Mr Truscott submitted that there was uncontested evidence about the departmentalisation of the Council which the Employment Judge should have taken into account and he referred to there being a document that showed the allocation of Claimants and comparators to different departments within the Council. I observe, however, that the procedure set out in paragraph 4 of the order of this Tribunal dated 8 January 2009 for agreement or recovery of a note of evidence was not followed and, accordingly, whatever the evidence was to which Mr Truscott sought to refer, it was not before me.

(11) The Employment Judge had concluded that the Council were a "single source" because the Claimants were employed by a single employer and in so doing he had erred. The Council apply terms negotiated by COSLA, a separate entity, and had inherited terms and conditions from their statutory predecessors. That showed that the "single source" test was not met. He referred, in support of his submissions, to the cases of Lawrence v Regent Office Care Council [2003] ICR 1092 and DEFRA v Robertson and others [2005] ICR 750. Contrary to the Claimants' understanding, Mr Truscott did not seem to be arguing that the "single source" test was never applicable where there was a single employer. His point was, rather, that on the facts of these claims, it could not apply.

(12) If it was necessary to consider the issues of "same service" and "single source", the two constructs should be determined disjunctively.

Submissions for the Claimants

45. Ms McNeill made submissions for the Stefan Cross Claimants which were adopted by Mr Allen who added some further observations on behalf of the Thompsons' Claimants, particularly regarding the interplay of domestic and European equal pay legislation.
46. By way of overview, it was said on behalf of the Claimants that the Council's stance, in seeking to argue that they could not compare themselves to their chosen comparators, was nothing short of astonishing and absurd in the circumstances. Those circumstances were that in 1999, as a result of acknowledged discriminatory pay practices, they had agreed that there needed to be comparison between these groups, through the mechanism of a new job evaluation scheme, that it was acknowledged by the Council that, in the meantime, each of the comparators' job grades could be regarded as sitting at a particular point on the existing 73 point APT&C scale and, furthermore, that the Council had conceded that it would be appropriate to compare these groups once what they referred to as supersession in terms of the Red Book, had taken place. Supersession could not be achieved until the job evaluation studies were completed, a matter which was within the power of the Council, and it was quite wrong that the Council should, in the meantime, be able to prevent the comparisons being made in the context of these claims. The Council were, in reality, advancing thinly disguised section 1(3) arguments which should not be entertained under section 1(6). Reference was made to Redcar and Cleveland Borough Council v Bainbridge & Ors [2008] ICR 238 as demonstrating the significance of job evaluation studies in the comparator context.
47. The Stefan Cross Claimants' primary position was, as per their cross appeal (see below), that the Claimants and their comparators were employed in the same establishment.
48. The submission for all the Claimants was that they and their comparators were employed on common terms and conditions; this was a paradigm case in the Leverton sense. The Red Book was a collective agreement that applied to them both, it had replaced the old Green and Blue Books and it had contractual force. There was no need to enquire into whether or not there was similarity as between the Green and Blue Books. Letters of appointment and standard terms and conditions showed the incorporation of the Red Book into individual contracts of employment. It did not matter that some of the terms of the Red Book were not apt for incorporation; it was still the collective agreement that governed the terms and conditions of the claimants and their comparators and the fact that supersession had not yet occurred was irrelevant. It was plain that as of 1 July 1999, there was a new collective agreement. It wrapped within it terms and conditions from the old Green and Blue Books but they were included only in the context of being part of the Red Book. The Red Book was a dynamic agreement and the process set out within it was underway. The Employment Judge had not erred.
49. Separately, if the Claimants and their comparators were not all employed on common terms and conditions, the Claimants were, as between them so employed and their comparators would, had they been employed at the same establishment as the Claimants in addition to that in which they were employed, have been employed on common terms and conditions. The Claimants took issue with the proposition in Dumfries and Galloway that, for the latter conclusion to be drawn, it was necessary that it be possible for the comparators to be so employed. If matters were considered in context, particularly in the European context, it was too restrictive so to insist.
50. As to the European context, it was a matter of rising to the challenge of maintaining the supremacy of European law within the development of domestic law. These claims were brought under the 1970 Act. Having regard to the direct effect of Article 141 and the technique explained in Autologic it was important to interpret domestic law in such a way as to ensure that the fundamental right to equal pay was secured. The Employment Judge had been right to find that the Claimants and comparators worked in the same service, a concept which was synonymous with "establishment". They all worked at providing the core statutory services which the Council was required to provide. Community law did not envisage a narrow approach to service and the Employment Judge did not require to carry out a detailed analysis.
51. As to the "single source" test, it was clearly satisfied since the Council was responsible for the inequality of pay complained of and was in a position to rectify it. That was the case even if the disparity could be traced to actions by predecessor bodies. The involvement of COSLA was not developed before the Tribunal and, in any event, the Council could not hide behind its skirts. COSLA was not a source of the pay inequality. Further, whether a particular body is responsible for inequality and is able to restore equal pay is a question of fact which, in this case, was found in favour of the Claimants and that was not surprising given the witness Mr Allan's concession that the Council was responsible for eliminating pay differentials. Whilst "single source" may not always be satisfied by common employment, as in the DEFRA case, it was satisfied in these claims. Following Armstrong, the Employment Judge had been correct to find that the "single source" test was met in respect of the Council.
52. Ms McNeill also submitted that it was not necessary that both the "same service" and "single source" tests be met. So to hold would, she said, be contrary to Lawrence.

The Stefan Cross Claimants' Cross Appeal

53. Ms McNeill submitted that the Claimants and comparators were employed at the same establishment within the meaning of section 1(6). The word "establishment" was not defined in the 1970 Act but bearing in mind the Article 141 context, it required to be given a purposive construction. The ECJ had adopted such an approach in the cases of Rockfon and Athinaiki Charapoiia AE v Panagiotidis [2007] IRLR 284 ECJ, but the EAT were wrong to adopt the interpretation given, in those cases, to the word "establishment" where the exercise was being carried out under reference to the collective redundancy directive and with a view to protection of the right created in that context. To apply the same definition in the equal pay context would undermine the protection of the 1970 Act. It was not a matter of regarding each location as a separate establishment, which was the approach of the Employment Judge. If it was then an employer could defeat the purpose of the legislation by assigning women to one location and men to another. Accordingly, "establishment" required to be interpreted as having the same meaning as "service". The Claimants and comparators were in the same local authority service and thus employed in the same establishment. That approach would ensure that those who ought to be protected by the 1970 Act would be protected by it.
54. In response Mr Truscott submitted that Ms McNeill's approach involved giving the word "establishment" a meaning it did not naturally bear and that ought not to happen. The Claimants' approach amounted to asking for it to be made easier for them to advance a claim. That was not warranted and was distortion not interpretation. He submitted that the type of work undertaken at an establishment might determine some terms or conditions of employees' contracts of employment though he was not suggesting that it did so in this case. "Establishment" was something that was functionally related to the type of work. In the case of manual workers, they would be likely to "open" all year whereas in the case of a school, it would only be "open" during term time. Under reference to Rockfon, Athinaiki, Dolphin and MSF v Refuge Assurance plc and another [2002] IRLR 324, Mr Truscott submitted that the law was well settled and understood. Further, the determination of whether or not the Claimants and comparators were employed at the same establishment was a question of fact not law. The Employment Judge had not erred.

Discussion and Decision

55. I begin with some general comments. The issues that arose for determination at the pre–hearing review all concerned the appropriateness of the comparators specified by the Claimants. It is important to bear in mind that sanctioning the use of a particular comparator in an equal value claim does not of itself mean that the Claimant has shown that she and her comparators were employed on work of equal value or that she did not receive equal pay or that her claim will succeed. Those issues are for another day.
56. Also, I recognise that there is a sense of some outrage on the part of the Claimants at the Council's approach here; thus the submission that it seems absurd for the Council to suggest that the Claimants cannot compare themselves with their chosen comparators when it accepted, in 1999, that it was appropriate to compare these jobs for job evaluation study purposes. As a generality, I can see that there is some force in that observation. However, also being but a generality, it does not of itself provide the answer and it is necessary to look at the constituent parts of the relevant tests in law.
57. These are claims under section 1(2) of the 1970 Act and, as such, require the Claimants to compare themselves with identified comparators who are men in "the same employment" as them. They can satisfy that test of "same employment" by showing that they are "employed at the same establishment" as their comparators. Alternatively they can do so by showing that although they and their comparators are employed at different establishments, those comparators are employed at "establishments in Great Britain which include" the establishment at which they are employed and "at which common terms and conditions are observed either generally or for employees of the relevant classes" (see: s.1(6) of the 1970 Act).
58. As regards that alternative, it refers to circumstances where women are employed across the establishments referred to on "common terms and conditions" or where men are employed across those establishments on common terms and conditions, even although the men's terms and conditions are different from those of the women. It also applies to circumstances where no men in the comparator classes are in fact employed at the women's establishments but, on carrying out a hypothetical exercise, it can be shown that if they were employed there, they would be employed on "common terms and conditions" as between them and the men employed at other establishments (British Coal).
59. Those concepts of "establishment" and "common terms and conditions" in the circumstances of these claims were, as I have indicated, central to the issues that the Employment Judge had to consider.

Establishment

60. Although this issue was raised in the Stefan Cross Claimants' cross appeal rather than in the main appeal, since it is the first question that arises under section 1(6), I think it best to determine it first. If Claimants and their comparators are "employed by her employer at the same establishment" then they are in the "same employment" for the purposes of section 1(2) and that is an end of the matter so far as the issues raised on appeal are concerned.
61. "Establishment" is not defined in the 1970 Act nor is it used expressly in Article 141. However, it was equated to the position where a woman works in the same service as a man by the ECJ in Defrenne. There, the court ruled:

"1. The principle that men and women should receive equal pay, which is laid down by Article 119, may be relied on before the national courts. These courts have a duty to ensure the protection of the rights which that provision vests in individuals, in particular in the case of those forms of discrimination which have their origin in legislative provisions or collective labour agreements, as well as where men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public."

62. The specific reference to the possibility of collective agreements having brought about pay inequality is particularly apt given the facts of the present case. So is the co-location of the words "establishment" and "service" which, in this context, read as referring to things which bear a broad similarity to each other rather than as things which are distinct and different. Moreover, as observed by the Lord Justice Clerk under reference to that passage in Defrenne, when delivering the opinion of the court in the case of South Ayrshire Council v Morton [2002] IRLR 256, at paragraph 47:

"From these paragraphs we conclude that in determining whether men and women receive unequal pay for equal work, the scope of the enquiry is not always confined to the claimant's own workplace or his own employer."

63. Thus, the Lord Justice Clerk's interpretation of Defrenne, with which I would respectfully agree, seems to be that a broad approach requires to be taken and it needs to be recognised that it may not be appropriate to limit consideration to the question of where the Claimants worked.
64. At this point I should deal with the general submissions made by Mr Allen and adopted by Ms McNeill about the approach to interpretation of section 1(6) for which its European context calls; Mr Truscott did not seriously take issue with those submissions. I begin by having regard to the general comments made by the Advocate–General, at paragraph 15 of his opinion in the case of Enderby v Frenchay Health Authority and Secretary of State for Health [1993] IRLR 591, that when applying the conceptual scheme of direct and indirect discrimination adopted by the courts, the import of Defrenne was that there should not be created "additional obstacles" to women's claims and:

"For this reason a formalistic approach should not be adopted when categorising actual instances where women are placed at a disadvantage at work. In accordance with the result – orientated line taken by the Court of Justice in the past, a pragmatic approach ought to be pursued."

65. I turn then to the principles explained in the case of Autologic. If s.1(6) of the 1970 Act is inconsistent with Article 141 it or such part as offends requires to be disapplied or moulded to such extent as is necessary for the promulgation of the Article 141 principle. Such an exercise was carried out by the Court of Appeal in Redcar and Cleveland Borough Council. Whether one talks in terms of disapplication, moulding, or effecting a purposive construction, the task is plainly to see to it that the ability of this "important socio- economic legislation" (Redcar and Cleveland Borough Council per Maurice Kay LJ at paragraph 22) to ensure the protection of citizens' Article 141 rights is not undermined.
66. Against that general background, I turn to the term "establishment". The Employment Judge followed the approach taken in Rockfon as applied by HHJ Peter Clark in the Dolphin case. Rockfon was a decision of the ECJ which concerned not Article 141 but Directive 75/129/EEC on collective redundancies and the consultation procedures required, a directive in which the word translated in the English version as "establishment" is a key term. The ECJ report includes observations by the Advocate General and by the court about the history of the use of the word "establishment" in community legislation, that it is generally considered to be something different from "undertaking", that if it had been the intention to require that the entire workforce of an undertaking should be taken into account for the purpose of determining whether the consultation requirements had been complied with it would have been easy so to provide but that that not been provided for. The ECJ held that "establishment" meant the unit to which the workers who were made redundant were assigned to carry out their duties. It also held that for such a unit to be an establishment, it did not require to have a management which had an independent power to effect redundancies.
67. On Rockfon, I would make three observations. First, the ECJ took the whole of the employers' undertaking as its starting point. Secondly, it seems clear that the ECJ sought to identify what, in the circumstances of that particular case, namely collective redundancy consultation purposes, amounted to a fair and reasonable group of employees to treat as an establishment. Thirdly, the group required to have some clear identity; in Rockfon, it was that the group of employees worked for a company within a group which had the distinct purpose of producing and marketing certain insulating materials. Fourthly, the term "unit" though evidently used as a broad term to capture that sense of what , fairly and reasonably , amounted to an appropriate grouping of employees, was not further identified but left for determination as a question of fact in each individual case.
68. Given the generality of some of the discussion in Rockfon about the use, meaning and import of the term "establishment" in community legislation it would, in my view, be too simplistic an approach to say that Rockfon is irrelevant because it concerns collective redundancies, not equal pay. More fundamentally, I read Rockfon as sounding an appropriate warning bell against applying categorisations which are liable to defeat the right which is entitled to protection, in this case, the right to equal pay. It indicates to me that the first question to ask is whether it is fair and reasonable to regard a particular group of employees as being a single establishment for comparison purposes in an equal pay claim. The group would need, it seems to have a clear identity such as would be discernible if, for instance, they worked together to achieve a common purpose such as those involved in the production and marketing of particular insulating materials in Rockfon. The intention does not appear to have been to apply the word in a technical sense and once its Article 141 context is taken into account together with the guidance in Autologic, it may be unduly restrictive to equiparate the concept of establishment to circumstances where employees work at a single geographical location, which was the approach of the Employment Judge. By adopting a broader approach, the concept of "same service" is also accommodated, in deference to Defrenne. I do not see that it is necessary to disapply any part of s.1(6) or to insert new wording into it, as in Redcar & Cleveland Borough Council, but it seems to me that the above interpretation of the word "establishment" is called for by way of purposive construction so as to accord with the principles in Article 141.
69. Returning to the question of what, in this case, falls to be regarded as the relevant unit for "establishment" purposes, I am not persuaded that it is as simple as asking: where did each Claimant work? The Council is a single corporate body which has a multiplicity of statutory powers and duties for the execution and fulfilment of which it can and does employ many people, including the Claimants and their comparators, to work in different places and in many different roles. The starting point must, in my view, be that not only is the Council a single undertaking but prima facie, it is a single establishment and only if the facts demonstrate that there are subsets of its operation which ought properly to be regarded as separate establishments, will that presumption be set aside.
70. Turning to what appear to be the relevant facts, I consider firstly the Claimants' and comparators' contracts of employment. Having regard to those which are contained within the Stefan Cross Claimants' bundle, whilst most of them specify the department in which their job is organisationally placed, they do not all do so. For example, Margaret Boyle's contract (p.201) does not do so. Further, as I have observed, the Council's departmental structures can and do change. Then, some contracts refer not only to a department but to a unit within it, such as Lynda Graham's contract (p.161) which specifies the employment placement as being not only within the Children and Families Department but also as within the Arts and Learning Unit of that department's Operational and Service Support Group. All the contracts specify an initial location but the governing provision on work location is that the employees could, in their appointed post, be required to work anywhere in the city. I appreciate that the Employment Judge found that in practice the operation of the mobility clauses in employees' contracts was limited but that does not detract from the contractual position being that they could all be required to move around the city as directed by the Council.
71. Considering then the findings about the Claimants' workplaces, whilst some of the Claimants were and are employed at schools, each of which could be expected to have its own identity and whose daily operation could be expected to be directed by the head teacher, there is much by way of purpose, management and control in local authority educational services that is directed centrally and so referring to the fact that they worked at schools does not of itself indicate work at a separate establishment. Other Claimants had posts which involved them working in different places in the city and, as is evident from the findings at pages 14 to 21 of the Employment Tribunal judgment, some of them had posts which required them working across the community, for instance the post of Assistant Area Manager (work at head office and in various schools), the post of Community Rehabilitation Support Worker (work in the community in people's homes) or the post of Field Supervisor (management of the effective operation of catering units throughout the city). Although, in his discussion, the Employment Judge refers (at paragraph 445) to the physical locations at which the Claimants work being "distinct entities" there are no related findings in fact explanatory of that comment. His use of the concept "entities" is not further explained. The findings do not demonstrate that the "entities" to which he refers can fairly and reasonably be regarded as distinct groups of employees for equal pay claim purposes. Further, the added observation he makes in that paragraph that those entities "have varying degrees of financial and organisational autonomy", would seem to point away from all the Claimants being assigned to separate and distinct establishments if that word is used in the sense I have discussed since it seems indicative of a lack of cohesion and uniformity of purpose. Also, as I have observed in the "Background" section above the Council's departmental structure does not seem to be directly aligned to its separate statutory functions, that structure changes and at least some of the Claimants' jobs seem to be in the same department as those of the comparators. I cannot, in all the circumstances, conclude that the Employment Judge was entitled, on the facts found by him, to conclude that the Claimants and their comparators were employed at different establishments. Rather, on the facts, the only conclusion open to him was that the Council itself was a single "establishment" within the meaning of s.1(6), the facts not demonstrating otherwise. Thus, he ought to have held that the Claimants and their comparators worked at the same establishment and the cross appeal, which was supported by Mr Allen on behalf of the Thompsons' Claimants, must, accordingly, succeed.
72. In the light of the above conclusion, the claimants have no need of specific recourse to the "same service" aspect of what is intended by Article 141 as per Defrenne if, which I doubt, it is, in practice, a separate concept distinct from "establishment". I would, however, add that, for the reasons set out by the Employment Judge, I agree that the Claimants and their comparators were employed in the same service. I have already indicated my rejection of the Council's approach.

Common Terms and Conditions

73. Despite my conclusion that the Employment Judge ought to have found that the Claimants and their comparators were employed at the same establishment, it is appropriate that I deal with the other issues in the appeal. I turn next to the question of whether or not the Claimants and comparators were all employed on common terms and conditions. If they were, then it does not matter if they were employed at different establishments. A liberal interpretation of what constitutes common terms and conditions was taken by the House of Lords in Leverton and it is now clear that it covers circumstances where men and women are employed at different establishments on terms and conditions which are broadly similar. They do not all require to be the same.
74. I would refer to the analysis of the facts relating to the Red Book that I have set out above. I consider that it demonstrates that the Employment Judge was well entitled to conclude that after 1 July 1999, the Green and Blue Books had no independent life (paragraph 477).
75. Further, if one simply poses the question of whether it was shown that the Claimants and comparators were thereafter employed on terms and conditions "governed" or "derived from" the same collective agreement , to use Lord Bridge's language , it seems plain to me that they were and that that collective agreement was the Red Book. There was ample evidence to entitle the Employment Judge to draw that conclusion. The Red Book régime was, on the facts found, followed for all employees, new and old, after 1 July 1999.Whilst some Green and Blue book terms were part of employees' contracts after 1 July 1999, that was because they were given new life in the Red Book, a life which, following the principle that a fresh régime was to be in place as of that date, they would not have had without the agreements contained in the Red Book. I accept that, pending the completion of job evaluation studies and new local arrangements being put in place in the light of those studies, the former APT&C employees' posts were graded according to the old 73 point spine and the former Manual workers posts were graded according to their old grading scale. However, what could be done, bearing in mind the advent of single table bargaining, was that Manual Workers' pay could be aligned with a series of points on the 73 point spine and that was done, as I have explained. Much was made on behalf of the Council of the continued use of the old pay systems and the repeated submission was that there would not be a single set of common terms and conditions until "supersession" had occurred but that misses the point. The use of the Blue and Green Book grading for pay purposes after 1 July 1999 was in the context of a new landscape. The scene had changed. Its use thereafter was and continues to be on an interim basis, as the Implementation Agreement makes clear. To put it another way, continued use of the old grading for pay purposes became, on 1 July 1999, conditional; once the job evaluation studies were complete and local arrangements in place, it would come to an end. Furthermore, it was on the basis that both the Blue and Green book pay and grading systems had been brought together within a single collective agreement and, importantly, would thereafter, together, be subject to single table bargaining . The Council's approach seemed to me to be blinkered to reality.
76. Thus, even if it were not the case that the Claimants satisfied the requirements of s.1(6) on the basis that they were employed in the same establishment as their comparators, I consider it to be clear that they and their comparators were all employed on common terms and conditions.

The British Coal Hypothesis

77. I turn next to the question of the proper approach in a case where Claimants and their comparators are not employed on the same common terms and conditions. In the Dumfries and Galloway case, where it was conceded that the Claimants and their comparators were employed at different establishments, where all the Claimants were employed at schools and where there were no findings in fact that anyone, let alone men, would or could be employed to carry out the comparators' jobs at those schools, I was persuaded that British Coal was not authority for the proposition that the hypothetical exercise to which I have referred above could be carried out if the circumstances were that there was no real possibility of the comparators ever being transferred to the Claimants' establishment to carry out their actual jobs. The issue was, as I have indicated, raised again in this appeal and argued afresh. I have, accordingly, given the matter further and, I have to confess, anxious, consideration. Whilst I consider that the application of the hypothesis does require a factual substratum, I am persuaded that my analysis was wrong, having revisited both the speech of Lord Slynn in British Coal and the fact that the Court of Appeal in the South Tyneside case would, had they had to adopt the hypothetical approach, have been prepared to do so on the basis of a hypothesis involving the inherently unlikely scenario of a street cleaner being employed at a school (paragraph 27). I accept that the intention of section 1(6), which must be assumed to be to promulgate rather than undermine the Article 141 principle, could be undermined if Claimants were required to establish, as fact, that there was a real possibility of their comparators being employed at the same establishments as them. Whilst it is not, I consider, inconsistent with that principle to require Claimants in a case where employment of their comparators at the same establishment as them does not seem likely, to show that it is likely that those comparators would, wherever they worked, always be employed on the same terms and conditions, that would, it seems to me, suffice. To put it another way, if it is shown that members of the comparator group are always employed on common terms and conditions, then it is legitimate to assume that they would be employed on those terms and conditions at the Claimants' establishment and men and women would thus be shown to be in the same employment. Circumstances where the comparators are always employed under the same collective agreement would, to adopt Leverton language, be the paradigm of appropriate application of the hypothetical exercise sanctioned by their Lordships in British Coal.

Single Source

78. The Council sought to exclude themselves from the ambit of section 1 of the 1970 Act on the basis that whilst they employed both the Claimants and their comparators, they were not a "single source" in the sense discussed in Lawrence, where the ECJ held that for equal pay proceedings to come within the ambit of Article 141, the pay differences between workers of different sex performing equal work required to be "attributed to a single source". That is, as is evident from the discussion at paragraphs 17 and 18 of the judgment in Lawrence, to show that the Claimants and their comparators were employed in the same establishment or service would not be enough if their pay differences were attributable to more than one source (see also: DEFRA per Lord Justice Mummery at paragraph 28; Armstrong per Arden LJ at paragraphs 8 and 9), a circumstance which could arise if the Claimants and comparators were employed by different employers or, as in the DEFRA case, in quite separate and different government departments.
79. Whilst the Council are correct in their submission that Lawrence is not authority for the proposition that common employment is sufficient since the facts may demonstrate that there is not a single source to be held responsible for the inequality in pay, I do not consider they are correct in asserting that ascertaining who is to be held responsible is a matter of historical enquiry and agree with The Honourable Mr Justice Nelson's judgment in this Tribunal in the case of North Cumbria Acute Hospitals NHS Trust v Potter & Others [2009] IRLR 176 where, at paragraph 107, he comments that it is not a matter of enquiring as to who was responsible for creating the inequality. It seems to me that it must mean "responsible" in the sense of asking who is perpetuating the inequality (or who was perpetuating it when the Claimant last worked) and who is able to put it right? That would accord with the approach taken by the Court of Appeal in DEFRA where, at paragraph 13, Lord Justice Mummery said:

"In Lawrence the Court of Justice held that , for equal pay proceedings to come within the ambit of article 141(1), the pay differences between workers of different sex performing equal work must be attributed to a 'single source'. As I understand it, the focus of this rather imprecise approach is on the location of the body responsible for making decisions on levels of pay in the relevant employment or establishment rather than on the identification of the relevant legal source of that decision- making power."

and Armstrong where, at paragraph 10, Lady Justice Arden said:

"…to constitute a single source for the purpose of Article 141, it is not enough for the non-RVI claimants to show that they have the same employer as the comparators. They must show that the employer was also the body responsible for setting the terms of both groups of employees."

80. Like Nelson J, I do not read either of the above as indicating that it is a matter of enquiring into who originally caused the inequality or who contributed to it, materially or otherwise. It is a question of the present circumstances and they are, put shortly, that it is the Council alone that is responsible for setting the terms on which both Claimants and comparators are paid (and bear responsibility for so doing throughout the period of the Claimants' claims). It is not of any moment that COSLA may have played a part or indeed that any historical disparities arose from separate table bargaining in respect of separate collective agreements. The Council are plainly the single source responsible here.

Disposal

81. I will, in these circumstances, pronounce an order upholding the cross appeal, dismissing the appeal and remitting the claims to the Employment Tribunal to proceed as accords.