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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sunderland City Council v. Brennan & Ors [2008] UKEAT 0219_08_2006 (20 June 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0219_08_2006.html Cite as: [2008] UKEAT 219_8_2006, [2008] UKEAT 0219_08_2006

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APPEARANCES

 

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)

1. This is an appeal against an interlocutory order of the Employment Tribunal. The employers complain that the Tribunal has wrongly allowed the question of whether they have a genuine material factor defence under section 1(3) of the Equal Pay Act to be determined as a preliminary issue in circumstances where it is wholly inappropriate for that step to be taken. They are supported in part, but only in part, by the two trade union respondents, namely Unison and the GMB, who face related sex discrimination claims.
2. In summary the case is that the claimants have made equal pay claims, and the employers have advanced GMF defences, on the basis that it is agreed that the jobs of claimant and comparators are of equal work (i.e either the claimants are employed on work of equal value or work related as equivalent under one of two job evaluation schemes (JES)).
3. It was on that premise that the Tribunal originally ordered that there should be a GMF hearing. However, the claimants now seek to make an amendment whose effect, if successful, is that one of the JES relied upon by the claimants, or at least part of it, would be declared invalid. The assumption on which the GMF hearing was ordered would then be fundamentally undermined; indeed, the very basis of these claimants' equal pay claims as currently drafted would fall away. Moreover, the exercise of determining the GMF defence with respect to those claimants could be rendered entirely fruitless depending on the extent of any invalidity.
4. Once the claimants had applied to amend their claims, the council sought to have the GMF hearing stayed pending the determination of that issue. The Employment Tribunal refused the application. It adjourned the question whether the amendment should be allowed, and ordered the GMF hearing to go ahead as planned. It is against that interim decision that the council and the unions appeal.

The background.

5. The background is yet again equal pay litigation in the North East. The claimants are employees of the council, who have brought claims going back in some cases to 2003. There are apparently some 1050 claims in total. Certain claimants have been chosen as test cases with their particular comparators.
6. The claimants also name as respondents the two trade unions. It is said that they have discriminated under section 12 of the Sex Discrimination Act by – putting it very broadly – being willing parties to discriminatory pay arrangements. Proceedings have also been brought against them pursuant to section 77 of the Sex Discrimination Act pursuant to which the claimants submit that if and insofar as they are not able to obtain the benefits of a certain collective agreement (or at least particular parts thereof), then those parts of the agreement should be declared void. (In an earlier case involving the same parties that came before the EAT the Tribunal held that the Tribunal did have jurisdiction to hear section 77 claims in circumstances arising in this case: see Unison v Brennan [2008] IRLR 492.)
7. The claimants have amended their claims on a number of occasions, and there is a combined Particulars of Claim document ("COPAC").
8. The claims fall into two distinct periods. First, there are those which relate to the period from 1997 until 2005. These involve some claimants whose jobs have been determined to be of equal value and others where the claimants had had their jobs rated as equivalent under the then existing job evaluation scheme, which was in place for certain manual workers. These are known as "White Book claimants". At the risk of some simplification, the basis of these claims is that the comparators relevant to this hearing have been in receipt of certain bonus payments which have effectively become part of their basic pay. The GMF defence is that the payments were not based on sex and, in so far as indirect sex discrimination is in issue, they were justified payments to reflect job or work features which applied to the comparators but not the claimants. Altogether, there are roughly 150 claimants in this category.
9. The second period relates to the time post 1 October 2005. The background to this is that in 1997 a single status agreement was entered into by employers and trade unions nationally and as part of implementation of that agreement the council had negotiated a collective agreement with the unions. This is known as the "Phase 1 Single Status Agreement" ("POSSA"). The agreement was not finally reached until some date early in 2006 but it has retrospective effect to 1 October 2005, the date when a new job evaluation study came into effect (the Green Book scheme). This replaced the earlier White Book job evaluation scheme.
10. The POSSA included pay protection arrangements for a period of four years for employees who suffered a loss of earnings as a consequence of the re-grading arrangements. This, according to the council, was introduced very much at the behest of the trade unions who, understandably, felt it was an important part of the protection for a group of their members who would otherwise be deeply aggrieved at their pay suddenly, and in some cases no doubt, significantly, being reduced. POSSA also includes certain other advantages given to protected workers. The principal grievance of these complainants, therefore, is that they have not been given the benefit of pay protection which has been provided to their male comparators.
11. All the claimants are advancing this claim. In addition to the 150 or so already discussed, there are a further 950 claimants approximately who brought their claims in 2006. Their claims are based on the fact that they are rated as equivalent under the new Green Book JES. In their case, however, they have entered into COT 3 agreements which deal with any claims they may have against the council pre 1 October 2005. However, they claim that they should have the advantage of the pay protection and that this is not covered by the COT 3 agreement.
12. This claim is put in two ways. First, they submit that even before the introduction of the JES they were employed in equal work to their chosen comparators and therefore had they been earning the higher pay at the time the new JES was introduced, they would have received the protected pay benefits. (I call this the "historic" pay protection claim.) In addition, they contend that it is not lawful to confer protected pay whether they were formerly employed on equal work or not. They submit that they should get the same pay as those who are rated as equivalent, and that includes the protected pay benefits which the council has chosen to give to their comparators.
13. The GMF defence is that the employers are justified in protecting the salaries of those who lose out as a result of the JES since otherwise they could face real difficulties meeting their existing financial commitments. With respect to the historic claims, they rest upon the premise that the bonus payments can be justified. In addition, with respect to those claimants who have entered into COT 3s, the council submits that these agreements prevent any historic pay protection claim in any event.
14. The validity of pay protection arrangements of this kind are currently being considered by the Court of Appeal hearing appeals from the decisions of the EAT in Redcar and Bainbridge v Cleveland Borough Council [2007] IRLR 91; and Middlesbrough Borough Council v Surtees [2007] IRLR 869. Judgment is anticipated very shortly. Depending to what extent the Court determines that these issues are fact sensitive may affect the question whether they effectively resolve the pay protection aspect of these claims or not (although that judgment will not resolve the COT 3 arguments).

The procedural history.

15. The procedural history is complicated. There have been a whole series of case management discussions and various orders have been made at different times. I see no merit in going through that history. There is no doubt that the understanding of all the parties, and indeed the Tribunal, until very shortly before the GMF hearing was to take place was that the issue of equivalence or equality was not in dispute and that the real question to be determined, in relation to both periods, related to the genuine material factor defences i.e. the justification of the bonuses and protected pay and related benefits respectively. It was on that basis that the Employment Tribunal gave directions for the hearing of the GMF defence.
16. Originally, the hearing of the GMF defences was listed for May 2007. That was adjourned when the claimants added claims against the trade unions. The hearing was initially adjourned until January 2008. There was a case management discussion on 2 August 2007 at which again it was emphasised that the basis of the hearing would be on the premise that there was no dispute as to equivalence or equality over the whole of the period of the claims. The case was prepared on that basis.
17. There was a further case management discussion on 5 October 2007 in which it was held that the section 77 defence should be heard at the same time as the council's GMF defence, and the substantive hearing was postponed to May 2008 with a time estimate of 30 days.
18. There was a further case management discussion on 19 November 2007 at which, for the first time, the claimants indicated that they were proposing to change their position. Mr Engelman, who appeared for the claimants then and does so before me today, indicated that he was unable formally to accept that the Green Book Job Evaluation Scheme ('JES') was necessarily valid. His position was spelt out in more detail at a January case management discussion, where it was stated that the validity of the Green Book JES – and therefore the premise on which the jobs were considered to be rated as equivalent – would be challenged.
19. The claimants were given an opportunity to present an amendment which, following some extensions, they finally did on 9 May 2008. This amendment has mounted a root and branch challenge to the nature of the JES. The claimants assert that in various ways the job evaluation scheme is not a lawful one and cannot be relied upon by the employer.
20. It is pertinent to note that there are essentially three different challenges to the JES. There is a challenge to the national job profiles which, if sustained, would render the whole JES invalid. There is also a challenge to the local implementation of the national guidelines which, if successful, would have the same effect. Finally, there is a challenge to the scheme as it applies to particular categories of worker only. If this were sustained it could leave the JES, as with the curate's egg, good in parts. It would be valid with respect to certain jobs but not others.
21. I infer that the reason for this challenge - although this has not been confirmed - is that if a valid JES is in place, it defeats any claim for equal value which is inconsistent with the gradings given in the study with respect to the period for which the JES is in force. If the JES is shown to be invalid, such equal value comparisons can be made. Presumably the claimants have taken the view that at least by and large, and for some of them, they will be able to establish equality with higher graded jobs than the equivalence which has been provided under the Green Book JES. However, at the moment it is not clear who the comparators would be in any equal value claim, or indeed whether any subsequent new claims could be advanced under the current proceedings.
22. The council sought a fresh case management discussion to argue that in the light of this change of tack the Tribunal should no longer continue with the GMF hearing. That application was refused. At that stage, no formal application to re-amend the COPAC had in fact been received. The Tribunal did make an Order, however, that if the claimants intended to apply to amend their COPAC then they had to do that by 9 May 2008. This was done and it reflects the stance which the claimants had by then adopted.
23. There was a case management hearing on 13 May 2008, with a decision given on the following day. The claimants put forward their amendment. Apparently, neither the council nor the unions in terms opposed it, but nor did they support it. I am told that the council took the view that in many of these claims the claimants could put in fresh claims in any event. Also they felt that the issue had to be determined because the whole grading structure was now potentially under challenge.
24. Both the council and, in a more limited way, the unions considered that it was inappropriate to hear the GMF defences given the fundamental change in approach of the claimants. The council argued that it was not appropriate to have the GMF defences heard when the claimants were advancing two fundamentally inconsistent positions: one, that the jobs were of equal value because they were rated as equivalent under the scheme; and the other, that the scheme was worthless. Moreover, they pointed out that the claimants were not even prepared to accept that if the GMF defences failed they would then not pursue their challenge to the validity of the JES. Accordingly the outcome of the GMF defences might be wholly irrelevant to the case subsequently advanced.
25. The Tribunal, for understandable reasons, was keen that the days allocated to the GMF defence should not be lost. The claims had been started a long time ago and the parties were in a position to present their evidence on that question; indeed, relevant witnesses were expecting to be called. Accordingly, they held that they would adjourn the consideration of the question whether or not to allow the amendment, but to require the GMF issue to be heard. The Tribunal took the view that no-one would be prejudiced by this course, and on any view it would determine some of the issues between the parties.
26. The council appealed that decision and sought interlocutory relief from the Employment Appeal Tribunal, asking the EAT to require the Employment Tribunal to stay any proceedings until their appeal on this point had been heard. That application was considered by Mr Justice Wilkie who ruled that it was for the Employment Tribunal to decide whether or not they would stay the matter.
27. The council applied to the Employment Tribunal to do so but their application was considered at the beginning of the GMF hearing on 21 May and was refused. The hearing therefore continued on that day and has, I am told, been going on until Friday 13 June. It is now due to re-commence on 14 July and in total a further thirteen days' sitting is anticipated.

The law.

28. This is not in dispute. As many cases have emphasised the EAT can only interfere with the decision of an employment tribunal on limited grounds. It is not a question of a rehearing. The classic test was formulated by the EAT (Wood J presiding) in Adams v West Sussex County Council [1990] ICR 546. Wood J said that the following three questions should be posed (550H-551A):

"(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.

29. There are essentially three grounds of appeal mirroring the three issues identified in Adams. The first is that the Tribunal simply had no jurisdiction to deal with the GMF defence, given the change of position adopted by the claimants. This ground is not supported by the union respondents and is only asserted by the council. Essentially they argue that the Tribunal has no power to consider any defence by way of a GMF issue unless there has either been a finding that the work is equal work (i.e is either work of equal value or rated as equivalent or like work) or the employers have conceded the point so that it is no longer an issue in the case. It is submitted that the structure of the Equal Pay Act makes it clear that it is only when the issue of equal work has been determined that the issue of GMF may arise.
30. Reliance is placed in particular on the decision of the EAT in Amey v Cardigan; City of Edinburgh Council v Marr [2008] IRLR 279 paras 11-13 in which Lady Smith emphasised that the structure of the Act is that a rebuttable presumption of discrimination applies only after equal work has been established. Mr Reade QC, counsel for the council, says that accordingly it was necessary for the claimant to establish equal value before the employer could be obliged to address the question whether there was any genuine material factor defence. He accepted that since on his case this is a jurisdictional issue the Tribunal could not properly determine the GMF issue first even if all parties wished that issue to be taken as a preliminary issue. In so far as this had been done in such cases as Enderby v Frenchay Health Authority and others it ought not to have been.
31. The second ground of appeal is that the Tribunal has without good cause reversed its previous case management order. The basis of the Tribunal's order was that the jobs were rated as equivalent, whereas the current order makes that an assumption rather than an established or accepted fact. It is to be implied that the Tribunal would never have made the order for a GMF hearing had they known that the issue of equal work was in doubt. Accordingly, to allow the order to stand involved a departure from the previous position.
32. Finally, there is a Wednesbury argument in which the submission is that the decision was one which no reasonable tribunal could have reached in the circumstances. It is principally on this ground that the unions join common cause with the council. It is submitted that it is inherently unfair for the case to be heard on the basis of agreed facts once the claimants have made plain that they do not in fact agree them. It means that even if the council succeeds in the GMF defences, they remain open to attack on a different flank on the basis that there never was a proper JES in place after all and that fresh equal value cases can be advanced.
33. The unions consider that the Tribunal has jurisdiction to order a preliminary hearing of this nature but support the other two grounds advanced by the council. As to the second ground, they submit that once a case management order has been made it should only be varied if there is a material change of circumstances: see Goldman Sachs Services Ltd v Montali [2002] ICR 1251, and Hart v English Heritage (Historical Buildings & Monuments Commission for England) [2006] ICR 655 at para 33. Here, on the premise that the Tribunal would not have made the order had the issue of equal work not been accepted, they were changing their decision because now they were making the order even thought it was not accepted.
34. The unions also support the Wednesbury argument. Reliance was placed on two decisions in the ordinary courts which have emphasised that a tribunal should not proceed on the basis of assumed facts where the determination of a legal issue between the parties will depend on facts found in later proceedings which may contradict the assumptions made: see Sumner v William Henderson & Sons Ltd (1963) 1 WLR 823 (827-8) and Royal & Sun Alliance Insurance plc v T & N Ltd [2002] EWCA Civ (1964). Mr White QC, counsel for the unions, submits that the very basis of the determination of the post October GMF defence would be undermined if the assumption of equal work were to prove false as a result of a successful challenge to the JES.
35. In addition it is submitted that it will create real difficulties if there is a GMF decision prior to the amendment being determined. For example, it is possible that the defence would not succeed. But for the validity of the scheme, that would mean that a claimant would win her claim. She would be in a highly invidious position if subsequently her own lawyers were potentially to defeat her claim by challenging the validity of the JES. Mr Engelman accepts that there would indeed be difficulties, but submits that these would be resolved by her lawyers telling her that they had a conflict of interest and that she should seek separate legal advice. That was a potential problem for the claimants' lawyers but did not affect the Tribunal's decision.
36. Finally, Mr White relied on some observations of Chadwick LJ in the Royal and Sun Alliance case (para 41) in which he pointed out that there were problems facing the party who lost a preliminary hearing in these circumstances. Translated into the facts of this case, it would create this dilemma: should the losing party seek to appeal the GMF decision or should it seek to have the JES issue resolved first?
37. The unions do, however, distinguish their position from the council in this important way. They accept that in relation to the pre-October 2005 decision there is every reason to have the GMF defences determined. Nothing in the claimants' stance with respect to the JES has any bearing on the council's GMF defence with respect to the earlier period. It is common ground that the validity of the GMF defence will have to be determined with respect to that aspect of the claim, and the unions say that it was plainly a sensible decision for the Tribunal to use the time available for that purpose. Their objection is only to the resolution of the post October 2005 GMF defence.
38. Moreover, as to the issue of delay, which appears to have weighed heavily with the Tribunal, the unions point out - as indeed do the council - that this was very much the claimants' own making. They failed to put forward this proposed amendment until May 2008, notwithstanding that it had first been mooted in November 2007. The Tribunal ought to have determined the application to amend and, if it were granted, they should have determined that issue before addressing the post-October GMF defence.
39. Mr Engelman, for the claimants, makes a number of points in a succinct and considered submission. He emphasises that unless the jurisdiction point succeeds - and he submits that there is no question that the Tribunal has jurisdiction in this case - then I must decide the case on the premise that the claimants must show perversity or unreasonableness in order to substantiate their case.
40. He submits that any such finding is simply impossible: the Tribunal's conclusion here is plainly sustainable. It is not a question whether other tribunals would have reached the same result. Given in particular the lengthy delays since these proceedings were commenced, the fact that there had been four previous adjournments of the GMF hearing, and in particular the fact that much of the relevant evidence has now been heard by the Tribunal, it would be wholly inappropriate to delay this matter for what might well be in excess of a year. Even if there were legitimate doubts about the original decision, which he does not accept, the position is even more in favour of that decision now that the hearing is half way through.
41. Furthermore, he submits that in reality there is very little evidence left to be given with respect to the post-October GMF, although it is right to say that there is a dispute about how extensive such further evidence is likely to be. In the circumstances I propose to decide the case on the premise that there will at least be some material saving of time if the hearing is now limited (whilst recognising that the issue may resurface later).
42. Mr Engelman also says that in reality this case is no different from others, like Enderby, where a tribunal considers GMF before considering the issue of equal work. It is admittedly an unusual feature that it is the claimant who is (potentially) challenging the hitherto accepted premise of equal work, but that does not in substance make this case different to many others where a GMF defence is heard first. Moreover, it is far from clear what the outcome of the JES challenge would be. If it failed or it was only successful in part, then any finding on GMF post-October would be relevant to the case. It is only if the amendment was pursued and succeeded in full that it would prove to have been a wholly wasted exercise.

Discussion.

43. I am satisfied that the Tribunal does have jurisdiction to hear the GMF defences. The argument is that the structure of the legislation makes it clear that it is only when equal work has been established that the employer can be required to deal with a GMF defence. Plainly this is indeed the structure of the Act, but I see nothing in the legislation which would forbid, in an appropriate case, the GMF issue being taken as a preliminary point, as in Enderby. Taking a point in this way is sometimes done where there is, say, a short point of statutory construction which will determine a claim one way or another, whatever the court's finding on the evidence.
44. In my judgment this analysis is also supported, as the unions argue, by some of the Tribunal rules. Rule 10(1)(i) in terms provides that part of the proceeding may be dealt with separately; and rule 4(5) of the Tribunal Rules (Equal Value) Rules of Procedure in terms empowers an employment tribunal "on the application of a party" to hear evidence on the GMF defence before determining whether to require an independent expert's report in equal value claims.
45. The premise of the latter rule is that the question of equal value is in dispute and yet the tribunal can make the order on the application of one party. It is not stated that there must be the agreement of both parties and it would undermine effective case management were that the case.
46. Mr Reade submits that the only purpose of rule 4(5) is to enable a tribunal to refuse to appoint an expert where the claim of equal value is without any merit. I do not see the justification for giving the clear words such a limited meaning. In my view it is plain that the draftsman envisages that the GMF defence may resolve matters without the need for equal value to be decided at all. I see nothing in the primary legislation to make this rule ultra vires.
47. As to the second ground, I accept Mr Engelman's submission that there has not been a departure from previous case management orders without a material change of circumstance. The case management order is the same as it has ever been, namely that the GMF hearing should go ahead. The real complaint of the council and the unions here is that there ought to have been a departure in an order not to go ahead (or in the unions' case, to go ahead only dealing with part of the defence) precisely because of a material change of circumstances, namely that the JES is now under fundamental challenge.
48. In my judgment, it is not sustainable to say that the Tribunal, when making the original order to hold a GMF hearing, was at the same time ruling that there ought not to be such a hearing if there were no acceptance that there is equal work. That was not the position the Tribunal was then faced with, and they made no ruling about it. There was a change of position and they had to determine what to do in the light of it. This was not a case where the Tribunal simply revisited an earlier decision and changed their minds, which is essentially what Montali and Hart are saying is an inappropriate exercise of discretion.
49. The heart of the case lies in the third ground, which is that this is not a decision which a reasonable tribunal could make in the circumstances; it is Wednesbury unreasonable. I start by indicating that I entirely accept the position adopted by the unions and Mr Engelman that in any event the GMF defence with respect to the period pre-October 2005 can quite properly be heard. There is no dispute about the equal value of the relevant jobs of claimant and comparator with respect to that earlier period. I see no reason why the issue should not be determined, and indeed, given the delays already in this case, every reason why it should be. Moreover, not only will the hearing deal specifically with the pre-October defence, but as all counsel agreed, if the employers were to succeed in that defence, it would knock out the historic pay protection claim in respect of the post October period. That argument is premised on the basis that there was unlawful discrimination in the past, but if the GMF defence holds, the difference in pay was not unlawful.
50. Mr Reade advanced two principal objections to this. First, he rightly said that until the amendment issue is finally determined, there can be no conclusive determination of the merit or value of anyone's claims. Second, he had a number of witnesses still to call, five of whom deal with the GMF defence in both the pre and post-October periods, and it is desirable that these witnesses should give all their evidence in one go rather than deal with the GMF defence for the earlier period now and the defence with respect to the later period perhaps many months down the line.
51. I do not think that the first argument justifies refusing to hear as much of the case as can properly be determined now, especially given that time has been allocated for it. I accept that the second argument has some merit, but in my judgment it is of relatively small weight when put in the balance with other competing considerations. In any event, it is plainly not Wednesbury unreasonable for the Tribunal to take that view and hear this aspect of the case.
52. However, I take a different view with respect to the GMF defence for the period post- October 2005. In reaching this conclusion I accept a substantial part of Mr Engelman's argument, but I am troubled by the potential difficulties which might arise if the issues are taken in the order proposed by the Tribunal.
53. I do not accept that the effect of the ruling is that the case is on all fours with the decisions in Sumner and the Royal & Sun Alliance Insurance cases relied upon by Mr White. This is not a case where subsequently a different decision on the post-October GMF defence might have to be made because the facts as hypothesised are shown to be false. The determination by the Tribunal would be on the basis of evidence used and tested before the Tribunal. There is no question of facts relative to that issue being assumed and subsequently shown to have been false. Any subsequent successful challenge to the JES would render the decision irrelevant, but it would not alter the factual basis on which the GMF decision itself was made and therefore could not cause the decision to be altered. I agree with Mr Engelman that the position is essentially no different to a case where equal value is assumed for the purposes of a GMF hearing, the GMF defence is not established so that the question of equal value falls to be determined, and subsequently it is shown that the jobs were not of equal value after all. In that case also the GMF decision will have been rendered unnecessary; but it will not have been decided on assumed facts. The risk that a preliminary hearing will prove to have been fruitless inevitably arises when the determination does not in fact resolve the case and further issues have to be explored. It is a good reason for being extremely reluctant to take an issue as a preliminary point, but it does not mean that there will have to be subsequent reconsideration of the point actually determined.
54. Nor would I be prepared to interfere with the Tribunal's decision merely on the grounds that there will be costs and time incurred which might in the event be shown to have been wasted. That again is an inherent risk in treating as a preliminary issue the point which may never have arisen at all if an earlier condition precedent to a claim had been considered and rejected. In my judgment the complications relating to potential appeals similarly arises whenever an issue of this kind is taken as a preliminary point. Notwithstanding these difficulties, I would have concluded that the Tribunal's decision was within the bounds of its discretion, particularly since the pre-October 2005 GMF has to be considered in any event, and there is some merit in both aspects of the defence with respect to each period being considered together. Moreover, time had been set aside and the witnesses were available to give their evidence.
55. The real concern, in my judgment, is the potentially damaging effect on the proceedings if the GMF defence is heard first. The result may be that the GMF defence post-October fails. The claimants whose jobs are rated as equivalent in a valid JES will then have succeeded in their claims, albeit not to the same extent as if they had made a successful equal value claim with respect to a higher paid comparator. If the attack on the JES were then made and succeeded, it would defeat their claims. Moreover, given the nature of the challenge, it is possible that the challenge would succeed in part only, in which event some claimants would have their claims defeated and some would not.
56. Mr Engelman accepts that if the GMF claim fails then the lawyers currently representing these claimants could not continue to do so whilst challenging the whole structure of the JES because that would create a potential conflict of interest. In my judgment that would be highly undesirable for a number of reasons, not least because there would inevitably be further delays resulting from those claimants obtaining fresh legal advice and perhaps wishing to be represented in the JES challenge to support the council so as to secure the benefit of their GMF victories.
57. I also find it deeply unsatisfactory that the legal process will operate so as potentially to place someone in a position where their claims are successful, subject to a decision by their own lawyers to challenge one of the premises, conceded by the employer, upon which their claim depends.
58. I recognise, of course, that if the claimants are successful then their lawyers may choose not to pursue the amendment - although they have not said that this is their position - and in any event the Tribunal may decide not to allow it. However, I do not see how the outcome of the presently pleaded case can properly be taken into consideration when deciding whether or not to allow the amendment, yet there is a risk that it may be influential, even if only subliminally so, if the merits of the currently pleaded case are determined first.
59. I do not think that it is justified to allow the claimants to keep this amendment in their back pocket and perhaps not to press it if their cases are successful. Logically, the challenge should be considered before the GMF defence and in my judgment it is unfair to the other parties not to deal with the issues in that order. There is nothing intrinsically unjust in the claimants running both horses; but if they do so then the Tribunal should determine the JES challenge before dealing with the GMF defence. If the JES challenge succeeds then it may remove the need for any further post-October GMF hearing at all
60. I recognise, and Mr Engelman emphasises, that as yet the proposed amendment has not been accepted and the Tribunal is simply hearing the case on the premise that the original claims are being advanced. This however is artificial now that the claimants have made their intentions clear. I do not, with respect to the Tribunal, agree that the question of the amendment can simply be adjourned to be determined later in the day thereby enabling the claimants to review the position once they see where the land lies. I do not suggest that the claimants are deliberately seeking to manipulate the procedure. Neither they nor the other parties, in fact, proposed that line and I think the Tribunal was wrong to adopt it. However, it is the effect of the Tribunal's decision.
61. Accordingly, I accept essentially the submissions advanced by the unions in this case. I do not think it is right for the Tribunal to determine the post-October GMF defence with respect to a case which may never in fact be relied upon by the claimants.
62. Mr Reade suggested that even if the Tribunal were not to be allowed to reach a determination on the post-October GMF defence until after the amendment issue had been resolved, nevertheless they should hear all the evidence with respect to it. Mr White opposed that on the grounds that this was requiring time and cost to be expended on an issue which might never arise. I agree with him. I also think that it would be much easier for the Tribunal to hear the evidence relating to that GMF defence when they have to decide the issue. It is asking too much for them to hold the evidence in their minds. I appreciate that they may already have to do that with evidence already given, but I see no reason to compound the problem.

Disposal.

63. For these various reasons, I uphold the appeal on the limited ground that the Tribunal, before considering the GMF defences with respect to the period post-April 2005 should first determine whether to allow the amendment, and if they decide to allow it, to determine whether the JES is valid or not. Meanwhile they should not hear any more evidence with respect to the post-October GMF defence.
64. In fairness to the Tribunal I should add that I have had the benefit of much fuller and considered arguments than were available to them. Indeed, I suspect that they did not have their attention drawn to some of the issues which have weighed most heavily with me.