Trafford Borough Council v Cooksey & Ors (GMB Claimants) (Equal Pay Act : Material factor defence and justification) (Rev 1) [2012] UKEAT 0255_11

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Trafford Borough Council v Cooksey & Ors (GMB Claimants) (Equal Pay Act : Material factor defence and justification) (Rev 1) [2012] UKEAT 0255_11_1805 (18 May 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0255_11_1805.html Cite as: [2012] UKEAT 255_11_1805, [2012] UKEAT 0255_11_1805

THE HONOURABLE MR JUSTICE WILKIE

INTRODUCTION

1. These two conjoined appeals concern a judgment handed down by the ET sitting at Manchester after a Pre-Hearing Review dealing with the Genuine Material Factor (GMF) defence in multiple equal pay claims against Trafford Borough Council (“the Council”). The judgment was entered in the Register and sent to the parties on 17 February 2011. The comparators are male manual workers. The claims concerned four types of payment which were received by the comparators but not the Claimants, namely: (1) bonus; (2) attendance allowance; (3) on-call allowance; and (4) gritting allowance. The GMF defence failed in relation to each of the first three types of payment save as regards (1) and (2) in respect of the caretaker Claimant Mrs S Cooksey. The GMF defence succeeded in relation to the gritting allowance.

2. In the First Appeal, the Council appeals against the adverse findings in relation to the bonus, attendance allowance and on-call allowance. The grounds of appeal in relation to bonus and attendance allowance are the same, but the Council relies on different grounds of appeal in relation to the on-call allowance.

3. The Second Appeal is brought by a single Claimant, Mrs S Cooksey, a GMB member. She is a caretaker and she appeals against the finding that the Council’s GMF defence succeeded because, it decided, the Claimant had failed to prove a disparate adverse impact against women in relation to her as a caretaker.

4. There are two groups of Claimants, each supported by a different trade union. The UNISON Claimants and the GMB Claimants. The appellant, Mrs A Wedgbury, who is not a lead Claimant, was formerly represented by different solicitors but is now represented by UNISON.

5. The issues in these appeals divide into three parts:

(1) The Council’s appeal in relation to bonus and attendance allowance;

(2) The Council’s appeal in relation to the on-call allowance; and

(3) Ms Cooksey’s appeal in relation to the ruling concerning caretakers.

THE BONUS AND ATTENDANCE ALLOWANCE ISSUE

A summary of the Council’s argument

6. The Council’s appeal in relation to bonus concerns the “Armstrong” or “no-sex taint” issue. The argument is that, notwithstanding a finding or concession of disparate impact, and even if the differential cannot be objectively justified, a Respondent, by virtue of the line of authorities, starting with Armstrong v Newcastle upon Tyne NHS Hospital Trust [2005] EWCA Civ 1608, [2006] IRLR 124, always has an opportunity to show that the GMF defence should succeed because the reason for the difference in pay is not tainted by sex.

7. The Council contends that the ET misdirected itself and/or erred in law in its reasoning in relation to this, “no sex-taint,” issue.

8. The six grounds relied upon by the Council are as follows:

1. Did the ET err in law in its analysis of the law relating to the “no-sex taint” or “Armstrong” aspect of the Council’s GMF defence?

2. Did the ET err in law in directing itself that, if a factor applied only to jobs that were traditionally done by men, this meant that there was automatically a sex taint?

3. Did the ET err in law in directing itself that the “no sex taint” defence should fail because the bonuses were paid for jobs that were traditionally done by men?

4. Did the ET err in law, and/or reach a conclusion which no reasonable tribunal, properly directing itself in law, could have reached, in finding that no comparable work study was done for the cleaners as was done for the male comparator groups? In particular, did the ET fail to address or deal with key evidence given on behalf of the Council?

5. Did the ET err in law, and/or reach a conclusion which no reasonable tribunal, properly directing itself in law, could have reached, in finding that the selection of jobs for bonus depended upon whether they were part-time or full-time, rather upon whether they were suitable for a self-financing productivity bonus?

6. Did the ET err in law by failing to address the evidence and arguments that had been put forward by the Council in support of the “no sex taint” defence?

Summary of the Claimants’ Argument

9. It is said that the case follows a similar factual pattern to the other cases in local government as summarised in Bury Metropolitan Borough Council v Hamilton[1] and Council of the City of Sunderland v Brennan.[2] This is that:

a. From the 1960s male occupational groups working full time in local government were paid productivity payments or bonuses; female occupational groups working part time were not. These payments meant that the men were paid in the order of 33-50% more than the women over a very long period of time.

b. From the late 1980s the payments to the men gradually ceased to be linked to productivity and became a fixed part of basic pay. This has been referred to as “stabilisation”.

c. However, no equivalent increase in the basic pay of the female occupational groups was made. This was notwithstanding the fact that, at more or less the same time, a job evaluation scheme for employees working under “White Book” terms and conditions rated the work of many of the women’s occupational groups equivalent to that of the male occupational groups.

d. In the 1990s, for reasons which included serious concerns about the underpayment of female occupational groups in local government, a process of collectively negotiated pay reform began which resulted in a “Single Status Agreement” in 1997. This abolished the relevant bonuses and introduced one pay scale into which all local government employees were to be assimilated locally. Different Councils proceeded at different speeds in terms of the implementation of Single Status. In the present case, this was not achieved until 2009.

10. ETs have tended to accept that the productivity schemes which benefited the male occupational groups were genuine at their inception, but have found against the employer on the basis that the original reason for the schemes no longer applied after stabilisation and that, in any event, there was no justification for failing to pay women the same as the men. The position which has been taken, albeit through varying analytical routes, has been that at this point (if not before) there could be no justification for failing to equalise the pay of the female occupational groups whose work the employer itself had rated as equivalent. In Bury Metropolitan Borough Council v Hamilton the Employment Appeal Tribunal (“EAT”), presided over by Underhill P, substituted its own view that the employer’s defence failed on this basis. The Court of Appeal has confirmed the EAT’s reasoning in the linked Sunderland appeal.

11. The Claimants’ case is that:

a. The issue is whether there was direct or indirect sex discrimination in relation to pay.

b. On the facts found by the ET there was pay segregation. A clear practice had developed on the part of the Appellant of paying predominantly male groups of employees, working full time in traditionally male full time jobs, at least a third more than predominantly female groups of employees, in traditionally female, part time jobs, ie a pay practice which seriously disadvantaged women. This practice had subsisted for nearly 40 years in some cases and it required to be explained and justified by the Appellant.

c. The Council’s explanation was that the higher pay of the male occupational groups was the result of productivity schemes which had been introduced in the 1960s and 70s but which had not been suitable for application to the Claimants’ jobs. This was said to be a gender neutral explanation and, if accepted, was capable of disproving direct sex discrimination, i.e. any claim that the women were paid less because they were women and/or because they were doing “women’s work”.

d. However, the Claimants argue, even if this was the explanation, the Council’s pay practice disadvantaged the female occupational groups and thereby indirectly discriminated against women. On that basis too it required to be justified.

e. On the ET’s findings of fact, the Council failed to establish a gender neutral explanation for failure to pay the women the same as the men. But, in any event, by the time of the claims the practice had ceased to be justified, as the link between productivity and the higher rates of pay for the men no longer existed and had not done so for some time[3]. The men were simply being paid a third more than the women for work which was assumed, for present purposes, to be rated as equivalent and/or was of equal value. There was no reason why they should be paid more than the women or why the women should be paid less than them. There was no reason not to equalise the pay of the women.

f. The ET was, therefore, right to hold that the GMF defences failed.

g. Moreover, given the ET’s findings that the link between productivity and pay had been broken in the case of all of the male comparator groups, a number of the Appellant’s complaints about this aspect of its decision are academic. The GMF defences put forward by the Appellant were found as a fact to have ceased to have been material and/or to have ceased to explain or justify the continuation of unequal pay thereafter. An application of the reasoning of the EAT in the Bury case and of the Court of Appeal in the Sunderland case therefore inevitably leads to the conclusion that that this aspect of the appeal fails.

h. It is argued that an analogous approach was taken in Benveniste v University of Southampton[4], where a female lecturer who was paid less than her male comparators because she joined the university at a time of financial constraint was nevertheless entitled to equal pay with the male lecturers. The Court of Appeal held that when the financial constraints came to an end, as they had some time before the period in respect of which the claim was made, they ceased to explain or justify the claimant’s lower salary. The material difference between her case and that of her comparators had evaporated when the financial constraints were removed.

The Key Facts found by the ET

12. The Claimants are female manual workers employed by the Council. The jobs of the 31 lead Claimants (listed in Appendix 1 to the ET’s Reasons) in broad terms, are as care workers, cooks, school midday assistants, teaching assistants, passenger assistants, school crossings patrol workers and school technicians.

13. With the exception of caretakers, the Claimants were all employed in jobs which have traditionally been occupied by women, working part time. Subject to the same exception, the employees of the Appellant in those jobs were predominantly female[5] and consisted of part time workers ( paras. 174 and 175):

“almost all the Claimants we heard from took the job because it fitted with their own childcare needs”[6]

14. This picture reflected the national statistics. There was a direct link between the statistical picture and the social role of women. The statistics were not fortuitous. An approach which disadvantaged these occupational groups disadvantaged women. Moreover the origins of the low pay of the women were identified as follows:

“because the jobs done by the women were seen as an extension of domestic work...there was a general perception that this was not deserving of high pay”[7]

15. The comparators, (whose jobs are listed in Appendix 2 of the ET decision), are male manual workers employed in parks and countryside, cemeteries and crematoria, street cleaning, street lighting and highways.

16. These are traditionally male, full time, jobs. Statistically, the employees of the Appellant in the relevant jobs were predominantly male and predominantly full time. This was also the picture at a national level. It was no accident that this was the pattern. It reflected the social roles of men. An approach which favoured these groups, therefore, favoured men and disadvantaged women.

17. The assumption the ET was required to adopt for this part of the case was that the jobs of the Claimants and their comparators are rated as equivalent within the meaning of the equal pay legislation and are comparable in the relevant sense i.e., the Claimants were performing work of equal value to the comparators.

18. The Claimants were paid about a third less than their comparators. Thus, assuming work rated as equivalent, there was less favourable treatment which had been going on for many years.

19. Because of the concession by the Council that, save for caretakers, there was an adverse disparate impact as between the claimant groups and the comparator groups, the ET was required to approach the matter on the basis that there was a presumption of sex discrimination which the Appellant was required to rebut. The legislation required that the Appellant do so by proving that the reason for the pay differentials was a “genuine material factor which was not the difference of sex”. The Council’s case in this regard was that the reason for the difference in pay was that the men had been the beneficiaries of productivity schemes based on measurable outputs, whereas the women were in jobs which did not have measurable outputs and so were not suitable for that type of productivity scheme.

20. The ET found that the origin of the higher rate of pay for the comparator jobs was the introduction of genuine productivity-related bonuses which were not introduced for the Claimants’ occupational groups[8]. It considered whether the bonus schemes continued to be linked to productivity, with particular reference to the period in respect of which the claims for equal pay were made and concluded that:

“When average bonus started to be paid, the link between pay and performance was broken”[9]

21. The original reason for the introduction of the bonuses for the male occupational groups had ceased but the pay differential had been maintained. On the basis of these findings there was no, or no valid, justification, for the pay differential between the Claimants and their comparators during the period in respect of which the claims were made. This had been the view of Mr Howard Smith, a manager within the Council’s operational services, expressed in a memo of 15 November 2001,[10] even before consolidation of bonus with basic pay took place. He had told the Appellant that “we are wide open to Equal pay claims at the moment”[11]. He argued that stabilisation should only be a temporary measure, however, it became a permanent measure and nothing was done to address the underpayment of the women.

22. The ET cast doubt on the Council’s claimed reasons for not introducing such schemes for, at least, some of the Claimant groups, e.g. the cleaners. It suggested that the failure to address the problem of low pay for women working in local government, in contrast to the vigorous steps which were taken in relation to the men, may have been because the focus at that time was on the position of full time workers who were perceived to be the “breadwinners” rather than the part timers who worked for “pin money”. It concluded that:

“Whatever the real reasons for this statistical outcome, the Respondent has not persuaded us that the reason is without sex taint”[12]

23. The ET did not accept the Appellant’s professed reason for not having productivity related bonus for the Claimant groups namely, that their jobs were not susceptible to such schemes. However, at paragraph 223 of its decision, it said that, if it had accepted that as the true or whole reason, it would have been indirectly discriminatory as such a PCP would have served to exclude mainly female occupational groups.

THE LAW

The Legislative Framework

24. Article 119 of the Treaty of Rome[13] provides, so far as material, as follows:-

“Each Member State shall, during the first stage, ensure and subsequently maintain the application of the principle that men and women should receive equal pay for work of equal value.”

25. Article 1 of Directive 75/117/EEC (“the Equal Pay Directive”) provides, so far as material, as follows:-

“The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called “principle of equal pay”, means, for the same work or work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.”

26. The principles laid down in the case law of the Court of Justice of the European Communities (“CJEC”) relating to sex discrimination were given legislative effect in Council Directive 97/80/EC in respect of the burden of proof in cases of discrimination based on sex[14]. This Directive, which was applicable during the claim period, applied to equal pay as well as equal treatment[15] and the case law which it took into account included Enderby. Article 2 of that Directive provides as follows:

“Definitions

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly.

2. For the purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”[16]

27. With effect from 15 August 2009, the Equal Pay and the Burden of Proof Directives were repealed along with the other two Directives on gender equality, 76/207/EC (“the Equal Treatment Directive”) and 86/378/EC (on occupational social security), and replaced by a consolidated Directive, 2006/54/EC, (“the Consolidated Directive”). Article 2(1)(b) of the Consolidated Directive defines indirect discrimination as follows:

“indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”[17]

28. The concept of indirect discrimination in relation to pay is not intended to be different in nature to that which applies in relation to other forms of less favourable treatment. Moreover, the concept of a “provision, criterion or practice” (“PCP”) apparently encompasses what happened in Enderby v Frenchay Health Authority[18] ie an employer operating an apparently neutral pay practice which, as evidenced by valid statistics, disadvantages women.

29. The Equal Pay Act 1970 represented the United Kingdom’s implementation of the principle of equal pay. Where certain conditions are satisfied, the 1970 Act implied an equality clause into the Claimant’s contract of employment which required that the relevant term or terms of the Claimant’s contract were not less favourable than the equivalent term or terms in the contract of her male comparator. For present purposes, the relevant conditions can be summarised as a) the Claimant performing equal work to that of her male comparator and b) the employer being unable to prove that the difference in terms is “genuinely due to a material factor which is not the difference of sex”[19].

30. As far as equal work is concerned, under section 1(2)(a)-(c) of the 1970 Act there are three bases on which this might be established, which include that the Claimant and her comparator were doing work which is “rated as equivalent”[20] or work of equal value.[21]

31. Where any of these conditions is satisfied, the burden passes to the employer to prove, under section 1(3) of the 1970 Act a genuine material factor or “GMF” defence i.e.:-

“That the variation is genuinely due to a material factor which is not the difference of sex and that factor –

(a) in the case of an equality clause falling within sub-section (2)(a) or (b) above [i.e. based on like work or work rated as equivalent] must be a material difference between the woman’s case and the man’s; and

(b) in the case of an equality clause falling within sub-section (2)(c) [equal value] may be such a difference”

32. These provisions now appear in essentially the same terms in Chapter 3 of the Equality Act 2010. In relation to the GMF defence. Section 69 provides, so far as material, as follows:

“69 Defence of material factor

(1) The sex equality clause in A's terms has no effect in relation to a difference between A's terms and B's terms if the responsible person shows that the difference is because of a material factor reliance on which—

(a) does not involve treating A less favourably because of A's sex than the responsible person treats B, and

(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.

(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A's are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A's...........”

33. Section 69 incorporates within its terms the Consolidated Directive’s concept of indirect discrimination in its description of a factor which falls within its terms.

The Case Law - Glasgow City Council v Marshall

34. The Equal Pay Act was explained by Lord Nicholls in Glasgow City Council v. Marshall[22] as follows:-

“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man.... The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the Tribunal on several matters. First, that the proffered explanation, or reason, is genuine and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a “material” factor, that is, a significant and relevant factor. Third, that the reason is not “the difference of sex”. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect….

When Section 1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a “good” reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the Tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.”

35. This aspect of the appeal concerns the third requirement, that “the reason is not the difference of sex”. In this regard Lord Nicholls considered that:

a. The burden was on the employer to prove the absence of any sex discrimination;

b. That discrimination could either be direct or indirect discrimination;

c. There would be indirect discrimination where “the difference in pay has a disparately adverse impact on women”. If so, in order for the GMF defence to succeed it would have to be shown to be objectively justifiable[23].

Enderby v. Frenchay Health Authority

36. In Enderby, a predominantly female occupational group of claimants, speech therapists, compared their pay with two majority male occupational groups, pharmacists and clinical psychologists[24]. The section 1(3) defence was considered as a preliminary issue.

37. The Industrial Tribunal (“IT”) found:

a. that the reason for the difference in pay was that the pay of the different occupational groups was determined under distinct collective bargaining arrangements which were not tainted with sex discrimination and that the lower pay for the speech therapists arose from historical reasons related to hours, nature of work and responsibilities. Thus there was a gender neutral reason why the pay of the speech therapists was at the level it was at. The IT dismissed the claim that there had been direct discrimination in that the pay of the speech therapists had been influenced by the fact that it was “women’s work,” i.e. there had been gender stereotyping[25].

b. On indirect discrimination, the case before the IT was that the employer had applied a pay policy which had a disparate adverse effect on women. The impugned “practice” was said to be the pay differential between the applicants and their comparators[26]. This claim was dismissed on the basis that there was no evidence of any pay practice or policy which had been applied to the speech therapists[27]. The differences in pay “arose because of the bargaining structure and its history which was non discriminatory, and from the structures within their own profession which were also non discriminatory”[28]. The section 1(3) defence was upheld.

38. Before the EAT, the applicants argued that, under Community law, indirect discrimination means “a neutral practice which in fact adversely affects a group composed exclusively or predominantly of women”[29] that “the fact of the difference in pay is a pay practice”.....given that “as a matter of policy or practice the female dominated group are excluded from receiving the higher pay of the other groups”[30] and that this required to be objectively justified. No condition or requirement was required to establish or, if it was, membership of the relevant occupational groups was a condition for receiving the higher pay.

39. The finding that there had been no direct discrimination was not appealed.

40. The appeal on indirect discrimination was rejected by the EAT which held that:

“where unintentional indirect discrimination was alleged it was necessary to identify a requirement or condition and to consider whether it had a disparate adverse impact on women because fewer women than men in the appropriate pool were able to comply with it …the mere fact of a difference in pay, with a predominantly female group earning less than another group which at the time happened to be predominantly male, was not sufficient to raise a prima facie case of indirect discrimination; that if the difference in pay came about from a factor which was not tainted by gender the question of justification did not arise; that since either no requirement or condition had been shown in the present case or, alternatively, that the suggested requirement, the Whitley Council collective bargaining arrangements, was not tainted by sex discrimination, the requirement for the Respondents to justify their policy did not arise.....;[31] (emphasis added)

41. The contentions of the parties before the Court of Appeal were materially the same as they had been before the EAT[32]. The Court of Appeal referred questions to the CJEC. It set out the relevant facts for the purposes of the reference which, for present purposes were as follows:

“(1) The complainant who is a woman does job A in a profession (speech therapy) in which the staff employed by the employer X are almost all women and in which the holders of job A are almost all women. (2) The comparator who is a man does job B in a profession (pharmacy) in which a majority of the staff employed by the employer X are female but where the majority of the holders of job B are men. (3) ...... (4) .... (5) The rates of pay for the two professions, including the rates of pay for job A and job B, are and have been determined by collective bargaining between the employer and the representative trade unions. (6) The same trade union, and the same trade union representative, represents the two professions, and the collective bargaining in relation to the pay of speech therapists, including employees in job A, is carried out separately and independently from the collective bargaining in relation to pharmacists, including employees in job B. (7) It has been determined by the tribunal of fact that there has been no sex discrimination whether direct or indirect, intentional or unintentional, in the manner in which the collective bargaining processes (considered separately) have been carried out or in regard to the arrangements for entry or transfer into or promotion within either of the two professions. (8) Despite the absence of sex discrimination in the sense explained in paragraph (7), the system of separate collective bargaining for the two professions has and has had an adverse impact in practice on women in that holders of job A, who are almost all women, receive lower pay than holders of job B, who are mainly men, although the work of job A is of equal value to the work of job B. (9)........" [33]

42. For present purposes, the relevant questions were as follows:

"(1) Does the principle of equal pay enshrined in article [141] of the E.E.C. Treaty require the employer to justify objectively the difference in pay between job A and job B?

(2) If the answer to question (1) is in the affirmative can the employer rely as sufficient justification for the difference in pay upon the fact that the pay of jobs A and B respectively have been determined by different collective bargaining processes which (considered separately) do not discriminate on grounds of sex and do not operate so as to disadvantage women because of their sex?

(3).....”

43. The cases for the Health Authority and the United Kingdom were based on the proposition that indirect discrimination requires there to be a barrier or cause of the disadvantage which is generally applicable but which impacts adversely on women. The fact of adverse impact on a female occupational group, of itself, was said not to be enough[34].

44. The CJEC answered these questions as follows:-

“(1) Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article [141] of the EEC Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.

(2) The fact that the respective rates of pay of the two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs.

(3) …”[35]

45. At paragraphs 16 and 17 of its Judgment the CJEC said:

“16...if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid.

17. It is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant.”

46. Thus, the critical features of the Enderby case for present purposes were that:

a. the ET had found that there had been no direct sex discrimination. The specific reason for the pay rates of the speech therapists had been found as a fact to be historical reasons related to hours, nature of work and responsibilities. However, and contrary to the Appellant’s case, the CJEC did not accept that a gender-neutral explanation for the difference in pay was, of itself, sufficient to avoid objective justification.

b. this was not a case in which the employers had applied a requirement or condition, a PCP, in the sense of a barrier which had had a disproportionate adverse effect on the women.[36] This feature of the case was relied on by the Health Authority and the Secretary of State[37] as supporting their argument that objective justification was not required as this could not be a case of indirect discrimination. Their argument was rejected by the CJEC. The CJEC held that the requirement of objective justification was triggered because the statistics showed that the employer’s pay practice had an adverse gender impact. Provided the statistics were significant, there was no need to inquire into the reason why the disparate impact had arisen.[38]

c. As to statistical significance, the CJEC explained what it meant at paragraph 17. The question is: “whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena and whether, in general, they appear to be significant”.

47. Further light is said to be shed on this question at paragraphs 13 to 18 of the Opinion of the Advocate-General[39], and particularly paragraph 15:-

“The purpose of a conceptual scheme is to comprehend methods by which women are placed at a disadvantage in their working lives and not to create additional obstacles to claims being made before the Courts in respect of sex-related pay discrimination. 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.”

And paragraph 35:

“As I have already stated in my basic comments regarding the nature of indirect discrimination, attention should be directed less to the existence of a requirement or a hurdle by means of which women suffer a disadvantage, and more to the discriminatory result.....”

48. The Advocate General’s emphasis was on a results based and purposive approach rather than a technical or formulaic one. Enderby is said by the Claimants to show that the law in this area is directed at the problem of women being disadvantaged in relation to pay. It was, therefore, more than sufficient that the Council conferred the advantage of higher pay on jobs traditionally occupied by men and not conferred on jobs traditionally occupied by women. It was not necessary to show that the employer caused the disadvantage, merely that its approach disadvantaged women.

The post Enderby case law

49. Paragraphs 14-17 of the Advocate General’s Opinion in Enderby were highlighted by the EAT in Ministry of Defence v. Armstrong and Others[40] (“Armstrong v MoD”) where the EAT ( Mrs Justice Cox presiding) emphasised, at paragraph 42, that:-

“Indirect discrimination in relation to pay bears a broader meaning than that which applies in the non-pay, Sex Discrimination Act context. There is therefore no necessity for an Employment Tribunal, as a matter of law, always to adopt a formulaic approach….. in considering whether there is sex-related pay discrimination and disparate impact for the purposes of Section 1(3). What matters is whether, in any particular case, a Tribunal is satisfied on the evidence before them and the facts found that the pay difference is caused by a factor or factors which are related to the difference in sex between the Applicant and her comparator.”

50. And at paragraph 46,

“In conclusion therefore the principles to be applied in determining the s.1 (3) defence, in our judgment, involve the tribunal focusing on substance, rather than form and on the result, rather than the route taken to arrive at it. ......in approaching these issues, technicalities should be eschewed. The fundamental question for the tribunal is whether there is a causative link between the applicant's sex and the fact that she is paid less than the true value of her job as reflected in the pay of her named comparator. This link may be established in a variety of different ways, depending on the facts of the case. It may arise, for example, as a result of job segregation or from pay structures or pay practices which disadvantage women because they are likely to have shorter service or to work less hours than men, due to historical discrimination or disadvantage, or because of the traditional social role of women and their family responsibilities.”

51. These passages were expressly approved by the Court of Appeal in Grundy v British Airways plc[41] and Middlesbrough Borough Council v Surtees[42]. There merely needs to be a causative link between the fact that the Claimant is female and the fact that she is being paid less than a comparable male. The fact that the pay practice places women at a disadvantage need not be caused by the employer, just as an employer who pays less to part time employees need not have caused the social phenomenon whereby part time employees tend to be disproportionately female. The impact of the employer’s approach is enough. Similarly, it need not be established that the employer is responsible for the fact that carers and dinner ladies tend to be female – the only questions are whether they are predominantly female and, if so, whether the employer can justify paying them less for work of equal value.

52. In Armstrong v MoD the EAT made these points in the context of upholding a decision of an ET that the section 1(3) defence failed because the Claimants (who were part of a predominantly male group) were paid less because the pay structure was built on the assumption that the relevant group of employees would be in receipt of pension and therefore could be paid a lower salary. Whilst this was not impossible for the female members of this group, it was significantly less likely that they would be in receipt of pension than male members of the same group because a minimum of 16 years’ continuous service was required in order to be eligible for pension. There were far fewer women with sufficient service to qualify. The EAT was satisfied that the indirectly discriminatory criterion defeated the section 1(3) defence as it was “sex related”.

Armstrong and other cases

53. The leading authority on this issue, prior to Gibson, was Armstrong v Newcastle Upon Tyne NHS Hospital Trust [2005] EWCA Civ 1608; [2006] IRLR 345 (“Armstrong”).

54. In Gibson, the Court of Appeal, for various reasons, ruled that it was bound by the relevant part of the reasoning in Armstrong. Two of the three judges indicated that they agreed with it. The same conclusion was reached by the EAT in Armstrong (No 2) (see below), at para 67. In Brennan, at para 15, the Court of Appeal reiterated that Armstrong was not only binding but correct.

55. Armstrong concerned equal pay claims by female domestic ancillary workers at a Hospital Trust who had used male porters as their comparators. Originally both groups had received bonuses. The Trust decided to put the predominantly female domestic services, but not the portering work, out to tender. This led to a withdrawal of bonus for the females but not for the males, because it was considered necessary to remove the bonus in order to be competitive in the tender bid.

56. This difference in pay had a significant disparate adverse impact (see CA, para 12). Four reasons were put forward by the employer why the portering services were not put out to tender (see CA at para 18):

(i) It was not compulsory to do so and the NHA was philosophically opposed to the idea;

(ii) Major savings would not be made in this area because the budget for portering was less than for other groups;

(iii) The NHA management was not aware of local companies who might have been interested in tendering in this area; and

(iv) Opposition to a proposal to put out to tendering in an area which was not compulsory was expected to be more voluble.

57. Having found that there was a disparate adverse impact, the ET went straight on to consider objective justification. The Court of Appeal held that they were wrong to do so (see Lady Justice Arden at para 68).

58. In the first judgment Arden LJ, at paras 32 and 33 said:

“32(1) the complainant must produce a gender-based comparison showing that women doing like work, or work rated as equivalent or work of equal value to that of men, are being paid or treated less favourably than men. If the complainant can produce a gender-based comparison of this kind a rebuttable presumption of sex discrimination arises.

(2) The employer must then show that the variation between the woman’s contract and the man’s contract is not tainted with sex, that is, that it is genuinely due to a material factor which is not the difference of sex. To do this, the employer must show each of the following matters:

(a) that the explanation for the variation is genuine,

(b) that the more favourable treatment of the man is due to that reason, and

(3) If, but only if, the employer cannot show that the reason was not due to the difference of sex, he must show objective justification for the disparity between the woman’s contract and the man’s contract”.

It follows from the Marshall case that there is no need for an employer to provide justification for a disparity unless the disparity is due to sex discrimination. Miss Tether does not submit any different principle applies by virtue of Art 141.”

59. The clearest exposition of the relevant principle can be found in the judgment of Buxton LJ at para 110:

“As Lord Nicholls said at the end of the passage from Glasgow City Council v Marshall ….if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity. That is the basis of the step by step approach explained by Arden LJ in her paragraph 32, above. Once disparate adverse impact has been established, the burden passes to the employer in respect of two issues. First, that the difference between the man’s and the woman’s contract is not discriminatory, in the sense of being attributable to a difference of gender. Second, if the employer cannot show that the difference of treatment was not attributable to a difference of gender he must then demonstrate that there was nonetheless an objective justification for the difference between the woman’s and the man’s contract.”

60. The burden of proof for showing no sex-taint rests with the employer. The existence of the “no sex-taint” defence does not require the claimants to prove that there was a sex-taint.

61. Two of the judges in the Court of Appeal, Latham and Buxton LJJ, held that, on the material before the Tribunal, it was not possible for it to hold that the decision not to put the portering services out to tender was discriminatory (see Latham LJ at 92, and Buxton LJ at 115).

62. At paragraph 116, Buxton LJ made it clear that an employer can prove the absence of sex discrimination even by contending that the difference in pay is due to incompetence or a failure to follow through a stated policy. It follows that a GMF defence can be made out, even if the Tribunal does not think that the reasons are justified, and even if the Tribunal thinks that the Respondent’s actions were misconceived or incompetent provided the reason has nothing to do with gender.

63. At para 127, Buxton LJ said:

“I do not see how it can be said that a failure to deprive the male comparators of part of their income was discriminatory if the assumption is that their original receipt of that part of their income was not discriminatory.”

64. Moreover, at paragraphs 121 and 125, Buxton LJ made clear that the fact that the labour market in which the claimants operated was almost exclusively female did not mean that there was prima facie sex discrimination, thus requiring objective justification. The ET may have to delve deeper to see whether the disparate impact has nothing to do with gender.

65. Armstrong appears to make it clear that it is always open to an employer to show that the difference in treatment was not attributable to a difference of gender, even if there is a disparate impact and even if the real reason for the difference in pay is inefficiency or incompetence.

Authorities decided between Armstrong and Gibson

66. The authorities on “no sex-taint” during the period between Armstrong and Gibson are helpfully set out in paragraph 66 of the EAT judgment in Armstrong (No 2) [2010] ICR 647 (an appeal following the decision of the ET after remission in Armstrong (No 1)). The relevant citations are Villalba v Merrill Lynch [2007] ICR 469 (EAT), at paras 132-3; Middlesbrough Borough Council v Surtees [2007] ICR 1644 (EAT), paras 45-48; Cumbria County Council v Dow (No 1) [2008] IRLR 91 (EAT), para 25 and paras 115-119; and Redcar and Cleveland Borough Council v Bainbridge/Surtees v Middlesbrough Borough Council (EHRC intervening) (“Bainbridge”) [2008] EWCA Civ 88; [2009] ICR 133 (CA), at paras 57-60. In Bainbridge, Elias J, as he then was, explained why the principle set out in Armstrong is consistent with the reasoning of the European Court of Justice in Enderby.

67. In Bainbridge [43] it was argued before the Court of Appeal that Armstrong was not binding and was wrong. The Court held that it was unnecessary to decide the point. However, in coming to this view Mummery L.J. said this at paragraph 59 of his Judgment:-

“In its Middlesbrough decision [2007] ICR 1644 the Employment Appeal Tribunal considered the Armstrong case in some detail and concluded that it was correctly decided, but that it would be of limited effect in practice. The Appeal Tribunal considered that, if a Tribunal found that there had been disparate adverse impact (at least if the statistical evidence was convincing), it would usually be impossible in practical terms for the employer to show that the pay disparity was not related to the difference in sex. In particular, in an Enderby-type case, where the disadvantaged group comprised all or almost all women and the advantaged group were all or almost all men, it would be impossible in practical terms for the employer to show that the pay differential was not related to the difference of sex. Thus, although in theory it was right to say that an employer could still show that the pay differential was not due to the difference of sex, even in the face of evidence of disparate adverse impact, it would only be possible in a case where the statistical evidence was not very strong or convincing. We are inclined to think that that analysis of the decision is correct.”

68. Argument in Armstrong (No 2) was heard before the judgment in Gibson was handed down, but the Gibson judgment came out just before the judgment in Armstrong (No 2) was handed down and is referred to by Underhill J in that case. At para 70, the EAT said that “findings of discrimination should not be made on a purely mechanistic basis”.

Gibson

69. The Court of Appeal held that an ET had been perverse to find that a pay differential, that had a disparate adverse impact, was not sex tainted. See Smith LJ at para 54.

The primary findings of fact in Gibson

70. The key finding of primary fact by the ET, which led to the finding that the conclusion of “no sex- taint” was perverse, was that “it is correct that there were stereotypical assumptions that the claimants’ work was essentially “women’s work” and the comparators’ work considered man’s work” ( para 3.116 of the ET judgment).

71. The only difference between the comparators’ jobs and the claimants’ jobs which was advanced to explain the pay differential in Gibson was “measurability” (Pill LJ at paras 17 and 48). This was not enough to prevent the statistics demonstrating that there was a sex taint in circumstances where there was sex stereotyping (Pill LJ at para 52).

The analysis of the law by the Court of Appeal in Gibson

72. As the EAT observed in Armstrong (No 2), and the Court of Appeal observed in Brennan, (para 15), Pill LJ took a different approach in his judgment to that which was adopted by the other two judges, Smith and Maurice Kay LJJ.

73. Pill LJ did not find Armstrong an easy case (para 33 and 49), but was content to conclude that Armstrong had no application to the facts of Gibson (para 51). In contrast, the other two judges had no doubt that Armstrong was right.

74. Smith LJ said at para 57 that:

“Unless and until the Supreme Court says otherwise, it is open to an employer to avoid the need for objective justification if he can show that, notwithstanding that statistics have been produced which show that the pay practice in question has an adverse impact upon women, that pay practice is not sex-tainted....I am convinced that this is correct.”

And at para 59:

“There is an express opportunity for the employer to defend himself by showing that the pay differential was not due to the difference of sex.”

75. She made similar statements in paras 63, 64 and 65 and in para 66 she said:

“66. My conclusion is that whether the indirect discrimination arises in the field of pay or non-pay, it is always open to a defendant to demonstrate that, notwithstanding the appearance that the practice puts women at a particular disadvantage, in fact the apparent disadvantage has arisen due to factors which are wholly unrelated to gender.”

76. At para 67, she describes the “no sex-taint” defence as being “an express defence of “nothing to do with sex”.

77. Smith LJ went on to say that the guidance in Armstrong is readily misunderstood. It does not mean that it is sufficient for an employer to show that there is a difference of pay which is not directly discriminatory in order to show that there is no sex-taint (paras 58 and 59). At para 68, she said that, carefully considering the “no sex taint” argument, will entail “the giving of a historical explanation for how the pay arrangements came to be what they now are and how the complainant (and women like her) came to be paid less than their comparators.”

78. Smith LJ explained that the fact that direct discrimination is disproved may not, on its own, be sufficient given that indirect discrimination in relation to pay is also unlawful. Thus, disproving the proposition that stereotypical assumptions were the cause of the difference in pay may not be enough as demonstrating the absence of direct discrimination. A gender neutral explanation for the statistics, such as the non bonusability of the women’s jobs may not, of itself, be sufficient if there are powerful statistics to show gender disadvantage. Smith LJ said:

“70. The tribunal's reasoning did not address the question of whether the pay arrangements, which on their face were gender neutral, unintentionally put women employees at a particular disadvantage when compared with the male employees. They plainly did. The Claimants' disadvantage did not result from the fact that they were women; that would have been direct discrimination. But the disadvantage was indirectly causally linked to their gender. In my view, the history of the payment of bonuses to the street cleaners and gardeners and not to female carers was redolent of gender bias.”

79. Smith LJ said that where the disadvantaged group is heavily dominated by women and the advantaged comparators are heavily dominated by men, the inference of sex taint will readily be drawn and it will be difficult for the employer to prove its absence (paras 68 and 71). However, she accepted that there may be cases in which it will be possible for the employer to demonstrate that the adverse impact was not sex tainted.

80. Maurice Kay LJ said that he was convinced that Armstrong is correct. As with Smith LJ, he said that an employer which is faced with ostensibly significant statistics will generally have a difficult task, but he preferred to resist the language of exceptionality (paras 74 and 75).

Brennan

81. In Brennan, the Court of Appeal set out the law relating to the Armstrong issue at paras 12-20. The Court made clear that it regarded Armstrong and Gibson as being correctly decided. The issues which arose in the Brennan appeal are of no direct relevance to the present case.

Other cases

82. Reliance is placed by the Claimants on dicta by Elias P (as he then was) in Cumbria County Council v. Dow para 114 and Coventry City Council v. Nicholls & Others[44] in connection with indirect discrimination, to the effect that a criterion or practice which is not capable of benefitting the predominantly female group is necessarily indirectly discriminatory. The Council has argued that these cases are wrong and that they infected the reasoning of the ET. There was much argument before us on whether these decisions were approved by the Court of Appeal in Gibson. It is the case that Pill LJ did approve of them. We are, however, satisfied, upon close textual analysis of the judgments of LJJ Smith and Maurice Kay, that these judges made no pronouncement approving those decisions. One of the major planks of the Council’s appeal is the assertion that reliance on these cases constituted the primary ground upon which the ET decided in favour of the claimants on this issue. This too is in dispute. We consider below both that issue and whether the decisions in Dow and Nicholls were correct. The essence of what they said is in Nicholls at para 46 where Elias P said:-

“If the benefit is given only to those who perform traditionally male jobs and cannot be conferred on the Claimants doing traditionally women’s work, then prima facie indirect discrimination inevitably arises. On that premise, only the predominantly male group can benefit from the way the pay arrangements are structured. It is akin to paying more to full-timers than part-timers. The differential may be justified, but the need to justify plainly arises.”

THE REASONING OF THE ET ON THE NO SEX TAINT ISSUE

The ET’s conclusions on Bonus Schemes

83. The Council conceded disparate adverse impact in relation to all the Claimants groups other than the caretakers (para 211).

84. The Tribunal adopted the approach that there were 2 routes to establishing indirect discrimination. One was the Enderby approach where an inference may be drawn from the statistics provided enough individuals were involved, it could not be explained fortuitously, or on a short term basis and the statistics were significant (See paras 213 &214). It also considered the Bilka approach: that there was a PCP applied to determine who should receive bonus. That was said by the Council to be “whether the work activity was: (a) low in productivity, (b) could be easily measured, (c) whether the nature of the work was easily identified and (d) whether improved levels of performance would be of value to the Council by reducing the number of employees or undertaking more work with the same amount of employees”. (para 215)

85. The ET concluded that the Council did not apply any such PCP to all manual workers. If they had the ET would have expected to see detailed examination of the feasibility of incentive schemes to be applied to Claimant groups that were potentially amenable to the same kind of scheme, for example cleaners, catering and caretaking. The ET concluded that no such detailed examinations were carried out. Had the ET found that a PCP had been applied it would have found a disparate adverse impact to the relevant pool of disadvantaged employees, which would have been manual workers. However they concluded that there was no PCP (para 215).

86. The Tribunal then considered whether the Armstrong defence applied. At paragraph 220 it said as follows:

“It appears to us that the effect of the current case law is that it is possible although very difficult for an employed to prove that there is no sex taint once dispirit adverse impact has been proved or conceded. This is not a case like the example Elias P gave in Surtees v Middlesbrough Council … this is a case where the statistics show that the pay practice produced an adverse impact on woman over a long period and the statistics are convincing. In these circumstances, as Lady Justice Smith said in Gibson, it would be generally difficult for an employer to show that the adverse impact had nothing to do with sex. It is not enough to show that there was no direct sex discrimination in the process which produced the statistically picture. The issue is whether the Respondent can prove that there was no sex taint at all in that process.”

There is nothing in that paragraph with which the Council can or does find complaint. On the contrary it seems to identify that in this case the Armstrong defence was potentially available, albeit difficult to establish.

87. The ET in paragraph 221 said as follows:

“The Respondent argues that any inference of sex tainting impacting upon pay arrangements can be refuted on the basis that the reason that the comparator groups receive bonus was that they were in jobs which fortuitously lent themselves to the application of a productivity related bonus scheme which was self financing and that the opportunity did not exist for the Claimant groups. The evidence is not satisfactory to us that this was the full explanation to why the comparator groups were given bonus and the Claimants groups were not. We would have expected at the least a detailed examination of whether an incentive scheme would be possible for cleaners whose job at first sight would potentially lend it self equally well to an incentive bonus scheme as the job of street cleaners.”

In this paragraph the Tribunal accurately records the main submission of the Council. The Council argues that in concluding as it did, it misremembered or misunderstood the evidence to an extent that the Council asserts that its conclusions are perverse. We turn below to the merits of that argument.

88. At paragraph 222 the tribunal says:

“It appears to us that a large part of the explanation as to why the comparator groups were given bonus schemes and the Claimants groups were not is likely to be that Trafford followed the pattern established in the nationally agreed lead in schemes. The lead-in schemes were limited to full time workers. This clearly had an indirectly discriminate effect on woman the great majority of whom worked part time….. The reasons for focussing on full time workers to the exclusion of part time workers are lost in time, however given the context of the times it may well be that those negotiating at national level though the need to increase the low pay for men the majority of whom worked full time was greater than increasing pay for woman who worked part time. A prevailing attitude of the time was that woman worked part time for “pin money” whereas men were the “bread winners”. It is hard to think of any explanation not tainted by sex as to why no steps were proposed as a result of national negotiations to tackle the problem of low pay for woman particularly given that well over half of local authority workers were women… This was despite criticism in the 1967 report of over concentration on this type of scheme. The jobs done by the Claimants groups were those traditionally done by woman and the jobs done by the comparator groups were those traditionally done by men. The statistics show all the Claimants were disadvantaged and over time all were virtually all those who were advantaged were male. Whatever the real reason was for the statistical outcome the Respondents has not persuaded us that the reason is without sex taint”

The Council argues that this paragraph does not contain the core reasoning of the tribunal but that, if it does, they say that it is contrary to the evidence and contains inappropriate speculation based on an improper taking by the ET of “judicial notice” of the matters referred to. Accordingly, taken individually or in combination with the criticism of paragraph 221, it is said that this conclusion was perverse. The Claimants argue that this paragraph does contain the core reasoning of the tribunal. It applies the Enderby principles and considers the Armstrong defence as potentially, but not in fact available on the basis of the evidence and its assessment of it. It is said that the conclusions to which it came were correct in law and open to it on the evidence. We consider these arguments below.

89. The Tribunal, at paragraph 223 says:

“If the reason for not giving the Claimant group bonus was because they did not meet the criteria as asserted by the Respondent it seems to us that the need to justify would arise for the reasons given in paragraph 114 of Cumbria County Council v Dow at paragraph 46 of Coventry City Council v Nicholls i.e, the benefit is given only to those doing traditionally male roles and cannot be conferred on the Claimants doing traditionally woman’s work”

The Council says that this paragraph contains the primary reasoning of the ET. On that basis the Council argues that the ET erred in law. It did so by adopting what the Council says is an erroneous approach taken by the EAT in the Dow and Nicholls cases, which is to assume that:

“if it is possible to make a payment only to an exclusively or almost exclusively male group because of a particular feature of the job not shared by the female Claimants, then it necessarily involves a form of prima facie indirect discrimination against those woman. The payment is being made by reference to a characteristic of a job which in practice are held by job holders who are predominantly of one sex only.” (Nicholls para 46)

90. The Council argues that the EAT in Dow and Nicholls erroneously concluded that, in such cases, the Armstrong defence does not arise at all and that, by adopting this approach, the ET committed the same error of law. The Claimants contend that Dow and Nicholls do not contain any error of law and that, by adopting them as informing one of the reasons for the decision, the ET did not err in law. They say that Elias P was saying no more than that, where the criterion, decided on by the employer, and giving rise to a differentiation is gender neutral on its face, but adversely impacts on women there is, inevitably, indirect discrimination. The Armstrong defence, though theoretically available, is practically and logically impossible. Thus, the obligation on the employer to give an objective justification arises. In this case the Council’s own case was that the jobs, held predominantly by woman, were not susceptible to being subject of a productivity scheme. On that basis, the Claimants say, and on the Council’s own case, it was a classic case of indirect sex discrimination which called for objective justification. There was, in practice and logic, no room for the Armstrong defence as the disparate impact on women arose from the conduct of the employer requiring a criterion to be fulfilled which impacted disparately against woman.

91. The ET concluded at paragraph 224:

“We therefore conclude that the Respondent has not made out its Armstrong defence and in relation to the Claimant groups other than caretakers it needs to prove objective justification in addition to the reason for the difference in pay being both genuine and material.”

The ET then went on to consider the issue of objective justification.

92. It is common ground that the ET’s reasoning in relation to the attendance allowance followed parallel lines and the outcome of the appeal in respect of the bonus issue will be necessarily the same as the outcome of the appeal in respect of the attendance allowance.

Discussion and conclusions on the bonus and attendance allowance issues

93. The first three bases on which the Council argues this appeal focus on the alleged error of law by the ET in adopting the reasoning of the EAT in Dow and Nicholls thereby erroneously excluding any consideration of the Armstrong defence. The fourth and fifth issues concern whether there was any evidence on which the ET could make the findings in paragraphs 221 and 222 of its decision. The sixth issue, it is accepted, adds nothing to those two.

94. We first consider the first three issues. Mr Cavanagh, on the behalf of the Council, accepted in the course of argument that his argument of error of law depends for its efficacy in this appeal upon his contention that paragraph 223 contained the primary reason for the ET’s decision. If it did not, and the primary reason of the ET is contained in paragraph 221 and 222, he accepts that those paragraphs involve the ET specifically considering the Armstrong defence such that, in that regard at least, it could not have committed the error of law of which he accuses it as reflected in paragraph 223.

95. The Claimants say that Mr Cavanagh’s argument falls at the first hurdle. They argue that it is clear from the structure of the ETs decision that paragraph 223 was very much a secondary, or fallback, reason based on the assumption that the Council had established, as a fact, that the reason for not giving the Claimants the bonus was that they did not meet the criterion asserted by the Respondent. However, the ET had expressly found in paragraph 221 that that was not the full reason why the comparator group were given the bonus and the Claimant groups were not. The Claimants argue that the ET’s decision explicitly proceeded primarily on the basis that the Armstrong defence was potentially available and only secondarily on the basis of an analysis of the authorities which might be said to preclude the availability of the Armstrong defence.

96. In our judgment it is clear that the Claimants’ analysis of the ET’s decision is correct. In our judgment the primary reason was that contained in paragraphs 221 and 222 which explicitly considered the Armstrong defence and, in 224, concluded that the Respondent had not made out the Armstrong defence. Accordingly, the reasoning in paragraph 223, which is said by the Council erroneously to preclude the availability of an Armstrong defence in the circumstances there described, was an alternative on the assumption that the ET was wrong in its conclusion that the real explanation for the position of the Claimants was other than the susceptibility of their jobs to a productivity based bonus scheme.

97. In any event, in our judgment, the ET would not have erred in law had it primarily followed the reasoning of the EAT in Dow and Nicholls. We accept that it is clear from the authorities that there are now two potential routes for the establishment of a prima facia case of adverse disparate impact establishing a presumption of indirect discrimination calling for an objective justification. The traditional route involves the identification of a PCP which impacts adversely on women.

“Where the employer himself does something-“applies a PCP” - which has a disparate adverse impact as between men and women, it is entirely appropriate that any detriment to a woman which results should be actionable unless he can show that it is objectively justified: it is his act which is responsible for the discriminatory impact” (Armstrong No 2 para 69 per Underhill P)

Those cases may be described as Bilka cases and are to be distinguished from Enderby cases where:

“the employer has not – or at any rate cannot be shown to have - done anything with a discriminatory impact. Rather there exists a state of affairs in which men and women doing work of equal value are paid differently and it is judged fair to presume past discrimination.” (Armstrong No 2 para 69)”

In the former case it is not that there is no theoretical Armstrong defence, it is simply that it is logically and practically impossible for any such defence to arise because it is impossible for the employer to show that the adverse disparate impact has nothing to do with gender because he, by his own action, has created such a disparate impact. In the latter case there is, in logic and in practice, potential room for a no sex taint defence to rebut the presumption of past discrimination by way of an explanation of the statistics which rob them of significance in one or other of a number of ways. The basis of the argument put forward by the Council was that it had imposed a criterion for payment of a bonus: that the employees held a job which was susceptible to a productivity related bonus scheme. It impacted disparately on women. This reflected the fact that the jobs which failed to meet that criterion were traditionally regarded as women’s jobs. On that basis, consistent with Dow and Nicholls, there was no place for an Armstrong defence because the criterion itself was indirectly discriminatory and, accordingly, for the claim to be resisted the Council would have to justify it objectively.

98. Thus, whilst we do not have to determine this issue in order to dispose this ground of appeal, our judgment is that the approach of Elias P in Dow and Nicholls does not involve any error of law such as the Council asserts and so the ET would not have committed any error of law in deciding on the basis set out at paragraph 223.

99. However, the appeal in respect of this issue fails because paragraph 223 does not contain the primary reasoning. The primary reasoning is set out in paragraph 221 and 222, resulting in the conclusion reached in 224, which explicitly involves the acceptance that the Armstrong defence was potentially available to the Council.

The fourth and fifth issues which are, in effect, perversity challenges.

100. The first focuses on the finding of the ET that the evidence had not satisfied it that the Council’s explanation of why the comparator groups were given bonuses and the Claimants group were not, was the full explanation. That conclusion was supported at paragraph 221 by the ET saying it would have expected, at the least, a detailed examination of whether an incentive scheme would be possible for cleaners whose job potentially lent itself equally well to an incentive bonus scheme.

101. The ET had also adverted this issue at paragraph 215 where it said as follows:

“We conclude after considering the facts that the Respondent did not apply the criteria as asserted to all manual workers. If they had we would have expected to see detailed examination of whether incentive schemes could be applied to Claimant groups which were potentially as amenable as the same type of incentive schemes – particularly cleaners and possibly catering and caretaking. It is clear from the evidence of Mr Dunn that such detailed examinations were not carried out …”

The Council points out that the evidence of Mr Dunn, a Council witness, was that discussions were held with the Trade Unions in 1988 in the context of compulsory competitive tendering (CCT). Consultations were conducted over a 9 month period which included consideration of school catering and building cleaning for a bonus scheme. The unions opted for the retention of a larger work force on basic pay rather than a smaller work force with pay plus bonus. His evidence was that the operatives were part time workers, wished to retain their established working groups and were concerned about higher individual earnings from a tax point of view. In catering, there was concern lest the smaller work group could cope with variations in demand, particularly at peak times. In addition the Council points out that Mr Poyner gave evidence that, in the 1970’s, work based incentive bonus schemes for manual workers were developed and implemented but they would only be introduced where the significant increase in employee productivity could be realised with the resultant cost/benefit justifying the cost incurred in implementing such schemes. Various areas where it was felt that substantial productivity gains were not realisable, using the assessment criteria, included home help services, school meals catering and building cleaning. It was said by the Council that the ET has failed properly to investigate or “bottom out” this evidence in reaching its conclusions in paragraph 221 and that this, in part, derived from the fact that, it is said, it reached a logically prior decision in paragraph 223, which precluded the availability of an Armstrong defence in any event.

102. The Council also attacks paragraph 222 of the decision where the ET gives its view as to a large part of the explanation why comparator groups were given bonus schemes and Claimant groups were not: based on what it perceived to be a pattern established nationally, based on a prevailing attitude of the times, that women worked part time for “pin money” notwithstanding criticism of a 1967 report of over concentration on variable incentive bonus schemes. It is said that, in so deciding, the ET engaged in speculation based on supposition rather than evidence and that it amounted to the ET inappropriately taking judicial notice of certain matters.

103. The Claimants invite us to look in some detail at the ET decision and contend that the findings expressed in paragraph 221 and 222 are firmly based on the evidence which was before the Tribunal. We turn to the decision and the other documents.

104. The ET3, in paragraph 11.1, made the claim that “In general terms the Claimants jobs were not suitable for a performance related bonus. Efficiency savings could not be paid through the use of a performance related bonus. No bonus could be designed for the Claimants’ jobs that would have been beneficial to service delivery or which would have been cost effective.” This was borne out by the written submissions on behalf of the Respondents at the conclusion of the case that neither catering nor cleaning was appropriate for such a bonus scheme. The Claimants say, therefore, that there was a sound basis, on the Council’s own case, for the conclusion that there had been no systematic and serious consideration by the Council of the application of the bonus schemes to the Claimants’ jobs and that this supports the finding of the ET that this was not the true or main reason for the situation which the Claimants found themselves.

105. The Claimants say that the conclusions at paragraph 221 are supported by the rehearsal of the evidence by the ET in its decision. In particular at paragraph 60 where it finds as a fact:

“we find no detailed consideration was given in the period when the bonus schemes were developed for the male comparator groups to developing incentive schemes for the female dominated Claimant groups. Trafford … appears to have applied longer term schemes only to jobs done exclusively or almost exclusively by full time employees thereby excluding the female dominated groups the majority of whom worked part time … The work study department was not asked by the Director of Personnel and management services to study the female dominated jobs with a view to the possibility of introducing work study based incentive schemes so they did not do so… We have seen no evidence to suggest that any comparable work study was done on any of the female dominated jobs to that done on male dominated jobs such as gulleying and cleansing.”

The Claimants point out that these findings relate to 1974 rather that 1988 when, in respect of school catering and cleaning, there was some consideration in the context of CCT.

106. In paragraph 66 the Tribunal found explicitly that:

“there was initial resistance from some workers to the introduction of incentive schemes … however those who had initially resisted the schemes agreed to their introductions after seeing how the schemes had worked in other areas.”

Thus the initial reluctance on the part of male workers was overcome by showing them the benefits of the scheme. By way contrast, no such effort seems to be made in 1988 in the context of CCT.

107. Paragraph 80 describes what happened in 1988 in preparation for CCT. The Claimants point out that the evidence amounts to no more than that some consideration was given to introducing bonus schemes for school catering and building cleaning staff but, given reluctance on the part of the unions, this matter was not investigated further. The ET therefore was cognisant of this part of the evidence of Mr Dunn and did not over look it.

108. Thus the Claimants say the conclusions reached in paragraph 221 were firmly based on the evidence received by the Tribunal and recorded by it in its earlier findings of fact.

109. As for paragraph 222, the Claimants say that these conclusions reflect, in a condensed form, lengthy passages in the early part of the ET decision, where the ET considers in some detail, on the basis of the documentation placed before it the evidence of the expert witness Sue Hastings, and the historical position both nationally and in Trafford. It reflects the references made to the national picture: to the 1967 Report of the National Board for Prices and Incomes in paragraphs 25, 28-30, 35, 38, 40 and 41; in relation to the 1987 White Book Job Evaluation in paragraph 45; and to the NJC Bonus Technical Working Group Report in May 1998 a report which was dealt with at paragraph 51, which report was also referred to in the case of Gibson. The picture in respect of Trafford was dealt with at paragraph 55, 58, 62, 69, 80, 81, 92, 98-102.

110. Having regard to that wealth of material and evidence based on local witnesses and documentation, national documentation and the evidence of Sue Hastings, the Claimants contend that the conclusions to which the ET came at paragraph 222 were in no way speculation nor was the ET using its own “judicial knowledge” but that paragraph 222 was soundly and firmly based on the evidence which the ET had received.

111. In our judgment the Claimants are correct in their contention that paragraphs 221 and 222 are soundly based on the evidence the ET had received and cannot be impugned as being perverse, or misunderstanding the evidence, or amounting to speculation. On the contrary, the picture there described was, in our judgment, in accordance with all the evidence and, in particular, the fact that, when the variable incentive bonus schemes were first introduced in the early 1970’s in Trafford they were not introduced as a result of a comprehensive review of the manual workers jobs within the Council’s workforce but did follow on from the initial lead-in schemes introduced nationally and in Trafford which were exclusively in respect of full time employees and were in respect of jobs overwhelmingly performed by male workers. In our judgment the ET was entitled to conclude that, such consideration that there had been, many years later in 1988, to the possibility of introducing such schemes in respect of catering and building cleaning, did not enable the Respondent to discharge the burden of proof upon it to show that there was no “sex taint” involved in the respective pay arrangements which by their own concession had a disparate impact on the female members of the work force.

112. It follows that, in our judgment, none of Grounds four, five or six succeeds. We therefore dismiss the appeal in respect of bonus and, by parity of reasoning, in respect of attendance allowances.

On-call payments

113. The consolidated ET1 of the Claimants made complaint in respect of a number of elements of pay including “other enhancements of pay”. At that stage the on-call payment was not identified specifically.

114. In preparation for the hearing which commenced on 18 October 2010 a document was prepared headed “Issues to be determined by the Tribunal”. It included a list of payment elements which were to be considered. It included “Other allowances and expenses” but did not specify on-call payments.

115. On 21 October, the ET sought to clarify what types of allowances were claimed. At that point it was given a list of allowances which included the on-call payment. At that stage it was clear that the Council would need to address that issue.

116. The Council’s evidence was complete by the 18 November 2010. There were a number of further days of evidence which concluded on the 1 December. On that date the Claimants advised the Tribunal that the only allowances being pursued, in addition to the bonus and attendance allowance, were the gritting and the on-call allowances.

117. On 13 December, after written submissions had been lodged and when oral submissions were about to be commenced, the Council sought leave to adduce further evidence on the issue of gritting and, perhaps, on-call allowances. The ET refused, having regard to the procedural history and an acknowledgment on behalf of the Council that the omission to adduce evidence at that point was an oversight. Accordingly, the ET had to contend with the on-call allowance issue on the basis of the evidence which it had heard, which appeared to have involved each of the Claimants saying that they did not receive an on-call allowance but that each of the comparators who worked in the following areas: gardener, highway drain operative, sewer operative, road worker, street lighting attendant, driver and gulley assistant, did. In addition there was some evidence on the issue from Mr Helmn to the effect that the payment of on-call allowance was made to those comparators who were in jobs where the authority had a statutory duty to provide cover for example, having an electrician available to be called out to deal with traffic lights in the event of a road traffic accident, and for which there was a requirement that the jobholders be available to be called out if required which resulted in an on call payment, in addition to a payment for actually being called out.

118. The ET dealt with this issue at paragraphs 182-184 and 187-188. It emphasised that it was a separate issue, without any link to the incentive bonus scheme issue. It recorded that the Council sought to refute that there was a disparate adverse impact in relation to these allowances. The argument was encapsulated by the ET on the basis that the Council’s submission was that the employees who benefited from the allowances were not widespread. The payments were not made to all the comparators. The Claimants’ contention was that all the recipients of the allowances were men. None of the parties referred to statistics as to those advantaged or disadvantaged in relation to receipt of these allowances.

119. The ET’s conclusions on this issue are contained at paragraph 260-265 of the decision. The ET first considered the question of no adverse disparate impact. That required the Claimants to establish that there was such a disparate impact. The Tribunal concluded, on this issue, on the basis of the evidence: that all the recipients of the allowance were men; there was no evidence that any woman received the allowance and none of the Claimants did; the percentage of male manual workers who would be receiving the allowance was likely to be small; there were no statistics. They concluded “where no woman received the allowances and all the advantage group are men we consider this sufficient to find disparate adverse impact”.

120. Having decided that, the Tribunal went on to consider whether the Council had satisfied them that there was no sex tainting in the statistical picture so as to require the Council to objectively justify the allowance. The ET concluded that the Council had not satisfied them of that element of the defence.

121. Accordingly, the ET had to go on to consider objective justification.

122. The ET concluded that the reason for the difference in pay was genuine and material in that the Council was required to have someone available on stand-by for the various duties and that the payment was for those people being on stand-by at the relevant times. The ET also concluded that there was a legitimate aim which was: “paying the on-call allowance so that someone with the necessary skills was available to be called out if required”.

123. The ET, in considering the issue of objective justification, was obliged to apply the following series of tests;

“ … [do] the measures chosen … correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end” (Bilka – Kaufhaus GMBH v Weber von Hartz 1987 ICR 110 CJEC).

“… the ground … must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment either in whole or in part. The more serious the more disparate impact on woman or men as the case may be, the more cogent must be the objective justification” (Barry v Midland Bank 1999 ICR 859 (House of Lords).

“The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose.” (Cadman 2003 IRLR 368 CJEC).

There is a need to take into account,

“the possibility of achieving by other means the aims pursued by the provisions in question”

(Kutz-Bauer v Frei und Hansestadt Hamburg 2003 IRLR 368 CJEC)

124. The Tribunal in paragraph 265 said as follows:

“We conclude that there is a legitimate aim in applying the on-call allowance so that some on e with the necessary skills is available to be called out if required. However the Respondent has not proved or provided any evidence as to why the aim could not be achieved by a less discriminatory means. We apply our own judicial knowledge that in some jobs, people will be required, as part of their contractual obligations, to be on-call in accordance with a rota without additional pay, for making themselves available to be called out … We heard no evidence from the Respondent as to why it was necessary to pay an additional payment rather than employing the necessary people on this type of contract. The burden is on the Respondent to prove the GMF defence. We conclude that the Respondent has failed to prove the defence in relation to the on-call allowance”

125. The Council relies on a number of grounds. Its main ground is that there was an error of law. It is said that, in concluding that the Council had not persuaded it that it was necessary to achieve the legitimate aim to pay a on-call allowance, the ET posited the example of a scheme by which employees would be persuaded to make themselves available to be on call without any payment. It is pointed out, however, that the ET had identified “the legitimate aim” as being the payment of an on-call allowance so that someone with the necessary skills would be available to be called out if required. In other words to encourage those to make themselves available to be on-call by paying them an additional amount.

126. In Blackburn v Chief Constable of West Midlands Police [2008] EWCA Civ 1208, [2009] IRLR 135, the payment in issue was a supplement for night working paid to police officers. In that case the ET had found that there was no objective justification because, although it was a legitimate aim, the aim could have been addressed by less discriminatory means by not paying the comparators for their on-call services. This was an error of law, identified by the Court of Appeal, and expressed in the following way by Lord Justice Maurice Kay:

“25. In this as in any similar case the focus must be on the aim of the employer. It is abundantly clear from the guidance that the Secretary of State approved a structure which envisaged 'local schemes being tailored to the requirements of local circumstances'. The considered view in the West Midlands Police, expressed through the Chief Constable, was that 24/7 working should be rewarded. In my judgment, that was both rational and within the parameters of the national structure. The fact that some other police forces may have adopted schemes that had no or less disparate impact is nothing to the point. I accept Miss Slade's submission that it is other means of achieving the employer's legitimate aim which are relevant not the means of achieving different aims. In Kutz-Bauer v Freie und Hansestadt Hamburg [2003] IRLR 368 (at paragraph 51) the Court of Justice referred to the need to take into account: 'the possibility of achieving by other means the aims pursued by the provisions in question’.”

127. In addition, the Council says that it was an error of law for the ET to rely on “judicial knowledge” in circumstances where it was wholly inappropriate. Furthermore, it is said that the assertion that such an alternative could be available was irrational and it presupposed that a highly unionised work force would allow itself to have significantly disadvantageous terms negotiated on its behalf. However, the main attack is that, the legitimate aim having been identified as being to pay extra in order to encourage people, it was an error of law to describe a scheme which was not an alternative means of achieving that legitimate aim, but was the means of achieving a different aim namely to get people to be available for on-call duties without encouraging them to do so by making an additional payment.

128. In addition it is said that there was a procedural error in not permitting the Council to adduce evidence on this issue.

129. It was also argued on behalf of the Council that the ET erred in law in concluding that the Claimants had discharged the burden on them to show adverse disparate impact on the very limited evidence available as to which of the comparators received the on-call allowance and the fact that none of the Claimants did receive it.

130. The Claimants contend that the case management decision to refuse them permission to adduce further evidence was within the ET’s discretion and not unlawful. So too was the conclusion that the Claimants had shown an adverse disparate impact where, on the evidence available, some comparators received the allowance but none of the Claimants did.

131. It is not sought to be argued that the statement of the ET about the possibility of persuading the workforce to agree to be on-call without payment of an allowance was in any way justified. Implicitly, the Claimants accept this was an error of law. But it is said that the decision can stand because the ET was saying no more than that, on the issue of objective justification, the burden was on the Council, as it had been in respect of the issue of “no sex taint”. On neither of these issues was there any evidence whatsoever. Accordingly the ET was entitled to conclude that the genuine material factor defence had not been established.

132. In our judgment the only issue on which we are persuaded that the ET erred was the issue of what they said at paragraph 265 about the alternative means of achieving the “legitimate aim”. In our judgment the Council is right in saying that the ET erred in law. It purported to consider an alternative means of achieving a different aim rather than the legitimate aim it had identified. We reject the contention that the ET’s decision can be saved on the basis that it was doing no more than conclude that, in the absence of evidence, the Council had not discharged the burden on it to show that the making of the payment was necessary in order to achieve the legitimate aim.

133. In our judgment this element of the ET’s reasoning was so infected by its error of law that it cannot be saved. Accordingly the appeal of the Council in respect of the on-call payment must succeed.

134. We consider how we should dispose of this element of the appeal. Mr Cavanagh, for the Council, says that this issue is one upon which no further evidence is required. All the findings of fact have been made and the only issue is whether the means chosen to achieve the legitimate aim described was necessary or whether it could have been achieved in a less discriminatory way. He urges us to conclude that it is plain and obvious that the ET was wrong in concluding that the Council had not established an objective justification and that we should substitute our view for that of the ET.

135. The Claimants say that the case should be remitted to the same Tribunal for it to complete its deliberations on this particular aspect of the claim. It is said that it is inconsistent for the Council to contend that we can resolve this matter ourselves, when part of its complaint about the ET was its refusal of permission to adduce further evidence on the issue of the on call allowance.

136. In our judgment, on this particular aspect of the on-call allowance issue, there is no scope for further evidence. The ET has made a finding that the Respondent was required to have someone available on stand-by for various statutory duties, that the payment was for those people to be on stand-by and that this was a genuine and material reason for the difference in pay. The ET also concluded that there was a legitimate aim of paying the on-call allowance to ensure that someone, with the necessary skills, was available to be called on if required. In our judgment, it is plain and obvious that there was no means of achieving that legitimate aim, to reward those who were prepared to be on-call to perform these statutory duties, other than by making a payment to them in order to secure their services for that purpose. No suggestion has been made on the part of the Claimants as to what other ways might have been devised to achieve that end. In our judgment that is because it is plain and obvious that the aim can only be achieved by making payment and that no alternative means could be devised.

137. This, therefore, is a case where the EAT is empowered and obliged to substitute its view for that of the ET and we do so.

138. Accordingly, the Council’s appeal in respect of the on-call allowance is upheld and we substitute our finding that the GMF defence in relation to the on-call allowance succeeds in relation to all the Claimant groups in substitution for the ET’s finding that that defence failed.

MRS COOKSEY’S APPEAL

139. In the case of Mrs Cooksey, a caretaker, Trafford did not concede that there was a disparate adverse impact on the grounds of gender so as to bring into play either the Armstrong defence, if applicable, or the requirement to show an objective justification.

140. It was contended on behalf of Mrs Cooksey that there was a disparate impact. The gender breakdown of the workforce, based on the Respondent’s statistics as a snapshot during the claim period, showed that, in the disadvantaged group comprising caretakers, 27 were female and 92 were male. The Employment Tribunal heard evidence from Mr Eric Dunn during the course of the hearing, who was asked whether the gender breakdown of Caretakers was evenly split between females and males when the bonus schemes were introduced in the 1970s. His evidence, the ET found, gave rise to the possibility that that had been the case. Of Mrs Cooksey’s advantaged comparators, 134 were male and 1 was female.

141. Mrs Cooksey’s evidence was that she commenced her employment with the Respondent in 1997 and was employed until Easter 2008 as a caretaker. She commenced her employment at Wellfield Infant School on the 12 April 1999 as a grade 3 caretaker working 39 hours per week. She also started working at Wellfield Infant School from the 3 May 1999 as an SCP 4 cleaner working 3.5 hours per week. On the 1 April 2004 her hours as a cleaner increased to 5 hours a week.

The ET’s decision

142. At paragraph 106 the Tribunal found as a fact that, in 2005, the gender breakdown for caretakers was 27 female and 92 male employees. Mr Dunn was asked whether the gender breakdown was 50-50 at the time the schemes were introduced. He was uncertain, though he accepted that there had been a number of lady caretakers in smaller schools and there had been a category of cleaner in charge with some sort of caretaking role.

143. Dealing with the Claimant group at paragraph at 174 and 175 the ET said as follows:

“174. With the exception of the caretakers all the Claimant groups consist almost exclusively of women. All the Claimant groups which were in existence at the time the bonus schemes were introduced for the men with the possible exception of the caretakers consisted of part time workers. …

175. With the exception of caretakers almost all the Claimants we heard from took the job because it fitted in with their own child care needs. Often in the case of those working at schools, the woman worked at the schools their own children attended.”

144. The ET began its conclusions at paragraph 211. In relation to disparate adverse impact, it records that this was conceded by the Respondent in relation to all the Claimant groups other than caretakers. At paragraph 212 the ET said as follows:

“Mr Campion argues disparate adverse impact on the basis of two approaches. The first is the Enderby approach, where, on the basis of the composition of the Claimant and comparator groups it is clear that there is disparate impact. The second is the Bilka-Kaushaus approach where a provision, criterion, or practice has a disparate adverse impact on one group.

213. We conclude that there is no disparate adverse impact on women in the caretakers group using the Enderby approach. There is no clear evidence that at any time the caretaker group was predominantly female. Mr Dunn did not expressly agree that the composition of the caretaker group in the 1970’s was 50-50. He did not know although he accepted that there were female caretakers and a kind of cleaner/supervisor with some caretaking duties. There is a possibility that the caretaker group was 50-50 male/female in the 1970’s. In the 2005 statistics we have been shown the group is predominantly male. Mr Campion submits that the composition at the time the scheme was introduced should be considered rather that the later picture … It seems to us that it is appropriate to consider disparate adverse impact in relation to the claim period. The picture before this may inform the decision but we do not think that it is determinative.

214. We consider it likely that the statistical composition of the caretaker group during the claim period is similar to that of the 2005 statistics produced by the Respondent, that the group is predominantly male. The statistics produced show a point during the claim period. It seems unlikely that the composition of the group would have been very different in either the few years before or after the date of the statistics. For the purposes of the Enderby approach we do not think that the caretaker group can be combined with the other Claimant groups for the purposes of deciding whether there is disparate adverse impact for women in the caretaker group. If it could, there could be the possibility of one woman in an otherwise male group which did not receive bonus claiming disparate adverse impact. This would seem to be obviously wrong. Even if the caretaker group was 50-50 male/female in 1970’s this is insufficient to persuade us of disparate adverse impact on woman particularly in the light of the later statistics.

215. In considering the Bilka approach Mr Campion relies as a provision criterion or practice on the criteria which the Respondent says were applied to determine who should receive bonus … We conclude after considering the facts that the Respondent did not apply the criteria as asserted to all manual workers. If they had we would have expected to see detailed examinations of whether incentive schemes could be applied to claimant groups which could potentially be amenable to the same type of incentive scheme - particularly cleaners and possibly catering and caretaking. It is clear from the evidence of Mr Dunn that such detailed examinations were not carried out. Since we conclude that this PCP was not applied we do not need to consider whether disparate impact would have been proved. However we record that had we found that the PCP had been applied we would have found disparate adverse impact. We would have concluded that the appropriate pool was that of manual workers. In the absence of specific statistic for Trafford, we would have inferred that the picture there was likely to be similar to the national picture, ie, more than 50% of male manual worker would have benefitted from the incentive scheme and a very small percentage of woman.

216. The Claimants have put forward no alternative provision criterion or practice. The burden of proof is on the Claimants to prove disparate impact. We find in relation to women in the caretaking group they have failed to do so.”

Accordingly, the ET concluded that the Respondent needed only to show the reason given for the difference in pay was genuine and a material cause of the difference in pay and was not required additionally to objectively justify the difference. Accordingly the caretakers’ claim failed.

145. The agreed issues in relation to the second appeal are as follows:

a. Did the Employment Tribunal err in law by finding that the caretaker group cannot be combined with other claimant groups, for the purposes of applying the test in Enderby v Frenchay [1993] IRLR 591 ECJ;

b. Did the Employment Tribunal err in law in failing to find the statistical evidence of the entire claimant group and the entire comparator group relevant to the question of gender disparity;

c. Did the Employment Tribunal err in law by placing the weight it did on the presence of a significant number of men in the disadvantaged group;

d. Did the Employment Tribunal in law in failing to place any or any proper weight on the fact found that 100% of the advantaged group were men from at least 2001, and that a majority of the disadvantaged group were women?;

e. Did the Employment Tribunal err in law in disregarding the past statistical make up of the comparator and claimant groups, in particular at the point when the bonus was introduced, when determining the question of gender disparity?;

f. Was the Employment Tribunal perverse to make the finding that it did in paragraph 106 of its judgment regarding the statistical breakdown of the caretaker group;

g. Did the Employment Tribunal err in law, and/or reach a conclusion which no reasonable tribunal properly directing itself in law, could have reached, in finding that the claimant group of caretakers could not show disparate impact?

146. For reasons which will become apparent, issues (a) and (b) cover the same ground and will be considered together as do issues (c), (d) and (e). We are not required to come to any conclusions in respect of issues (f) and (g) but if we were so required we would have rejected them. There is no arguable basis for concluding that the ET’s findings in paragraph 106 did other than reflect the evidence. Nor were its conclusions on the substance of the issue not open to them had they correctly directed themselves in law.

147. In our judgment the legal issues can be summarised as follows:

a) Did the ET misdirect itself in overemphasising the extent to which it should take a different approach to the issue of prima facie disparate adverse impact on grounds of gender depending upon whether the case was one in which there was a PCP or was one in which there was no PCP but the inference that there was such a sex based disparate impact could be drawn from the statistics. That is whether it was a Bilka or an Enderby case?

b) Was the ET in error, having decided that this was an Enderby case, in concluding that the pools for comparison in respect of the caretakers were confined, in respect of the disadvantaged group, to the caretakers alone whereas it should have considered the pool of disadvantaged employees to include all manual workers?

c) If it did not err in either of the ways described in a or b, did it err in law in the approach it took to assessing whether in fact there was a prima facie adverse disparate impact on grounds of gender?

148. On the first issue, Mrs Cooksey relies principally on the decision of the Court of Appeal in Home Office v Bailey [2005] ICR 1057, [2005]EWCA Civ 327. In particular on the following passages in the judgment of Lord Justice Peter Gibson in which he stated that there should be a ‘common approach’ to Bilka and Enderby cases:

“28. ….In Barry v Midland Bank plc [1999] ICR 859 the question was whether a severance scheme basing a severance payment on length of continuous service and termination salary was indirectly discriminatory to women who were more likely than men to work part-time. The comparison which Lord Nicholls said (in the passage cited in para 12 above) must be made was based on Seymour-Smith. But it is hard to see why the statistical approach applied in Seymour-Smith should not be capable of being employed in cases where there is no condition or requirement but there is a pay disparity between two occupational groups. Provided that the employment tribunal is satisfied as to the validity of the statistics and the appropriateness of their use, in my judgment it is free to use that statistical approach in order to determine whether there has been prima facie discrimination. In particular, I do not see anything in Enderby that precludes such approach.

29. I am left unpersuaded by the appeal tribunal's attempt in para 26 of its judgment, cited in para 15 above, to identify a clear and sensible difference between a condition or requirement case on the one hand and cases where no such condition or requirement is identified. In each case the employment tribunal is concerned to determine whether what on its face is a gender-neutral practice may be disguising the fact that female employees are being disadvantaged as compared with male employees to an extent that signifies that the disparity is prima facie attributable to a difference of sex. The distinction drawn by the appeal tribunal between true "requirement or condition" cases and "cases involving disparity of pay which has arisen between two work groups" may not always be capable of clear definition or consistent practical application, as Ms Gill pointed out. Usually the disparity of pay between two work groups will reflect the fact that they do different work, and there may well be features of the work of the advantaged group which could be elevated to a requirement or condition. For example, where the disadvantaged group works in ordinary office or shop hours and the advantaged group does shifts or unsocial hours, it might be said that there was a requirement or condition for entry into the advantaged group of availability to work shifts or unsocial hours. The same statistics would be available whichever categorisation was used, and yet, if the Home Office was right, if it could be labelled a "requirement or condition" case the Seymour-Smith approach could lead to a conclusion of prima facie discrimination whereas, if it were categorised as a case involving disparity of pay between two work groups, prima facie discrimination could only be found if the disadvantaged group was predominantly female (or male) and the advantaged group predominantly of the other gender. As Ms Gill submitted, the difference between a formal requirement or condition for obtaining a benefit which divides two groups of workers and a division by reference to jobs for which different amounts are paid is one of form rather than substance, and a common approach to the two types of case has the merit of ensuring that the 1970 Act is applied consistently to all forms of indirect discrimination.”

149. Mr Cavanagh, on this issue, does not seek to contest that the effect of Bailey is that there should, in law, be a common approach whether the case follows the Enderby or the Bilka route. But, he argues, that does not necessarily mean that the ET erred in law in concluding that it should choose a different pool, on the basis of its finding that this was an Enderby case, than that which it said it would have applied had it been a Bilka case. In particular, Mr Cavanagh points out that the reasons the ET concluded that this was not a PCP case are not only set out in paragraph 215 but are fleshed out at paragraph 222, albeit in the context of considering the Armstrong defence in respect of the Claimants other than the caretakers. Those reasons, when taken in conjunction with its findings of fact in paragraphs 174 and 175, demonstrate that the ET’s conclusion, - that the caretakers were different from the other claimant groups in crucial respects so that they should form a separate pool for comparison - was consistent with it applying a lawful approach to pool selection, consistent with it not having differentiated its approach merely on the basis of its finding that this was an Enderby not a Bilka case.

The second issue

150. The parties rely on a number of authorities. The main one relied on by Ms Cooksey is Cheshire and Wirral Partnership NHS Trust v. Abbott and others [2006] EWCA Civ 523, [2006] ICR 1267, in particular paragraph 19, of the judgment of Lord Justice Keene criticising the Employment Tribunal in that case for confining itself to a narrow comparator pool:

“19. As a matter of logic, I find it difficult to see why the employment tribunal in this case found it appropriate to confine itself to a comparator pool consisting solely of the porters, when there were other ancillary workers employed at these hospitals who also received the bonus; that is to say, the caterers. In principle, the comparison should be made between the disadvantaged group and the advantaged group: see Barry v Midland Bank plc [1999] ICR 859, 864a and 869b. As a matter of statistics, a more reliable result is likely to be forthcoming if one takes as large a group as possible, so long as that group shares the relevant characteristics and can be seen as doing work of equal value. It does not appear to have been suggested in the present case that the caterers did not qualify on those grounds.”

151. In addition she relies on Specialarbejderforbundet i Danmark v Dansk Industri (acting for Royal Copenhagen A/S) [1996] ICR 51 (ECJ) (“Royal Copenhagen”) the Danish Court referred a number of questions to the ECJ including, the third question, reproduced at paragraph 10 of the ECJ’s Judgment:

“On the basis that one group consists predominantly of women and the other predominantly of men, can requirements be imposed as to the composition of the groups, for example with regard to the number of persons in the groups or the proportion which they represent among the total workforce of the undertaking? Can the Directive be applied, if necessary, to procure for two groups of — for instance — female employees the same pay by means of an intervening comparison with a group of male employees? One way in which the problem may be illustrated is as follows. A group of predominantly male workers (group A) and two groups of predominantly female workers (groups B and C) perform work of the same value; the average piece work earnings are highest in the case of group C, second highest in the case of group A and lowest in the case of group B. Can group B compare itself with group A and demand that its pay be raised to the level of that of group A; can group A thereon demand that its pay be raised to the level of that of group C; finally, can group B thereon demand that its pay be raised to the new level enjoyed by group A — which is that of group C?”

152. At paragraph 34 of the Judgment the ECJ stressed the comparison pool ‘must … cover a relatively large number of workers in order to ensure that the differences found are not due to purely fortuitous or short term factors or to differences in the individual output of the workers concerned’. At paragraph 38 the ECJ concluded:

“The answer to the third question should, accordingly, be that, for the purposes of the comparison to be made between the average pay of two groups of workers paid by the piece, the national court must satisfy itself that the two groups each encompass all the workers who, taking account of a set of factors such as the nature of the work, the training requirements and the working conditions, can be considered to be in a comparable situation and that they cover a relatively large number of workers ensuring that the differences are not due to purely fortuitous or short term factors or to differences in the individual output of the workers concerned.”

153. On this issue Mr Cavanagh also relies on Abbott and focuses on the words in paragraph 19 “… as long as that group shares the relevant characteristics and can been seen as doing work of equal value”. He says that, by reason of the finding of fact of the ET that the position of the caretakers was different from that of the other Claimants by reference to the matters in paragraph 174 and 175, it is consistent with the Abbott approach and was open to the ET to choose, as the pool for comparison, a pool of disadvantaged workers limited to the caretakers. He contends that the differences between the caretakers and the other Claimants, found by the ET on the evidence, were such that it was open to the ET to conclude that that group did not share the relevant characteristics, as they had been articulated in paragraph 222.

154. He also relies on the subsequent case of Grundy v British Airways 2007 EWCA Civ 1020 2008 IRLR 74. In particular, at paragraph 26 of the judgment of Lord Justice Sedley in which he said:

“… whether a pay disparity has a disparately adverse impact on women is primarily a question of fact … but … like all questions of fact it is bounded by principles of logic, departure from which is an error of law. What are these principles?”

27 … The correct principle, in my judgment, is that the pool must be one which suitably tests the particular discrimination complained of; but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none …

30. The dilemma for fact finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest, or narrowest, available pool, yet have no principle which tells them what is a legally correct or defensible pool …

31. … The assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant to both elements is the issue which the Claimant has elected to pose and that the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately be chosen. We do not accept that Rutherford is the authority for the routine selection for the widest possible pool; nor therefore that any question arises of looking at a smaller pool for some unspecified purpose short of determining the case.”

155. Mr Cavanagh says that, far from it being illogical for the ET to choose a different pool in respect of the caretakers where it concluded that the case was an Enderby rather than a Bilka case, it was open to it, logically, and by virtue of what it found at paragraph 174 and 175, supported by its reasoning at paragraph 222, to choose a pool which was limited to the caretakers. Indeed Mr Cavanagh goes further than that and contends that it was the only logical pool that it could choose.

156. Mr Campion says that, if the ET misdirected itself in law in apparently failing to have regard to the passages in which in Bailey the Court of Appeal sought to bring together the approaches to be adopted in both Enderby and Bilka cases, then it necessarily follows that its conclusion on the appropriate pool cannot stand, given its conclusion in paragraph 215 that the Bilka approach would have led it to have chosen a pool comprising all the manual workers rather than limiting it to caretakers. It cannot be said, he argues, that the ET has applied its mind properly to the question of what is the appropriate pool and there is plainly an alternative, namely the manual workers, as a pool which it could logically have chosen.

The third issue

157. Ms Cooksey relies on a further passage in Bailey:

“30. I can see no justification for the imposition of a high threshold for satisfying the test of prima facie discrimination. Where, as here, there is one group of employees of an employer which contains a significant number, even though not a clear majority, of female workers whose work is evaluated as equal to that of another group of employees of the employer who are predominantly male and who receive greater pay, it would be very surprising if an employment tribunal were to be precluded by the presence in the disadvantaged group of a significant number of men from holding that that disparity in favour of men required justification by the employer. In the present case it may well be that, as the Home Office suggests, there is a genuine material factor which is not the difference of sex and which justifies that disparity. Whether there is such factor is for further determination.”

158. Mr Campion says that the language of the ET in paragraphs 213 and 214 make it clear that it was consciously applying the approach described in the judgments of the ECJ in Enderby. In particular he relies on the repeated use of the word “predominantly” in those paragraphs and, he says, the ET completely ignored the approach described in paragraph 30 of Bailey which lowers the threshold for satisfying the test of prima facia discrimination to groups which contain a “significant number even though not a clear majority of female workers” and states that “an ET would not be precluded by the presence of a disadvantaged group of a significant number of men from holding that the disparity in favour of the predominantly male group required justification by the employer”. Accordingly, he says that where, as here, the 2005 statistics showed a significant number of woman in the disadvantaged group, though there were a clear majority of males in that group, and where there were no females at all in the advantaged group, the Tribunal could properly, had it directed itself correctly, have concluded that there was sufficient of an adverse disparate impact on the disadvantaged group for it to be considered to be prima facia evidence of discrimination requiring the Respondent to provide an objective justification if the Armstrong defence was not open to it.

159. Mr Cavanagh does not accept that the ET misdirected itself and, in any event, points out that there is ample authority for the proposition that where the disadvantaged group has a female/male split of a similar order as the present one an ET would be fully entitled to conclude that, for such a group, the disparate impact did not constitute prima facia evidence of discrimination on the grounds of gender.

160. He points out that the question is one for the national court and, accordingly, is a classic question of fact and degree. In BRS v Loughran 1997 IRLR 92 The Northern Ireland Court of Appeal was considering an equal pay claim where the disadvantaged group comprised 9 female and seven male clerical officers in which McDermott LJ at paragraph 63 said:

“… The mischief … is women being paid less than men for performing work of equal value where the woman are members of an exclusively female group it is fair to assume that there is discrimination – and assumption could not easily be made if that group were a mixed group. It seems to me that the more women that there are in the group the easier it would be to draw an assumption in their favour – or conversely, if there were more men in the group it is unlikely that such an assumption could be fairly drawn – indeed it probably could not be drawn at least without convincing evidence.”

And Mr Justice Kerr at paragraph 102 said:

“It was argued on behalf of the appellant … that the court of justice here confined the circumstances where prima facia evidence of discrimination might arise solely by reference to the numbers in each group to those cases where the female group was “almost exclusively” female and the male group was at least mainly men I cannot accept that argument... the relevance of the number of females in the group is as an indicator of its being traditionally a less paid group on account of it being composed mainly of woman. Logically a group comprising 75% female and 25% male has the capacity to provide such an indication. Whether is does in fact is a matter for the tribunal to decide …

104. A significant majority of women in a group may be as reliable an indicator of history of unequal treatment as is a group comprised virtually exclusively of women … I do not consider that the court intended to propound a principle that unless the disadvantaged group could be described as being composed of almost exclusively of females that a prima facia case of discrimination could not arise. On the contrary its enjoinder to national court to asses the statistics to determine whether they cover[ed] enough individuals is a clear indication of its recognition that the percentages and the significance to be attached to them could vary from case to case.”

In that case where the majority of the disadvantaged group was female the court was prepared to extend the protection.

161. Mr Cavanagh also relies on the fact that, in Bailey itself, the passage relied on by Mr Campion contains the caveat “where … one group … contains a significant number even though not a clear majority of female workers …”. Mr Cavanagh had advanced an argument based on this phrase in the case of Tyne & Wear Passenger Transport Executive v Best [2007] ICLR 523 in support of the contention that a contrast could be drawn between a clear majority, as described in Bailey, and a bare majority. In that case the EAT concluded that at least a bare majority was necessary.

162. Mr Cavanagh also relied upon the fact that in the case of Strathclyde Regional Council v Wallace [1998] ICR 205 the House of Lords considered a case in which the disadvantaged group comprised 81 male and 53 female employees and summarily dismissed the contention that, in relation to such a group, there was any evidence of discrimination.

163. Accordingly Mr Cavanagh contended that, even by reference to the lower hurdle described in Bailey, there was no case in which a disadvantaged group comprising the proportions of male to female in the present group of caretakers had been found to support a conclusion that there was prima facie adverse disparate impact on the ground of gender. Accordingly Mr Cavanagh contended that, on an issue which ultimately is one of fact and degree for the ET, the ET in this case had reached a correct conclusion.

164. As with issue 2, Mr Campion said that, if he were right, then the ET had failed to direct itself properly on the correct approach and had applied its mind to a very much higher hurdle than in fact was required to be considered. In those circumstances it could not be said that the ET, had it applied its mind to the correct approach, would necessarily and inevitably have come to the same conclusion.

CONCLUSIONS

165. In our judgment the ET did err in law in its approach to the importance of its having decided that this was an Enderby rather than a Bilka case. It is clear from the way in which it expressed itself and structured its decision that it considered that the two approaches were mutually exclusive. It did not refer at all to the case of Bailey even though it had been cited to it. Nor did it have any regard to Abbott or to Grundy which would have informed it as to the way it should select the pool for comparison.

166. However, given its findings of fact at paragraphs 174 and 175 and given its reasoning at paragraph 215 and 222 we do not accept Mr Campion’s submissions that it necessarily follows that applying the same approach whether the case is an Enderby or a Bilka case necessarily means that the pool of disadvantaged employees which would be appropriate on a finding that it was a Bilka case, need necessarily be the same as the pool of disadvantaged employees where the case has been found to be an Enderby case. The crucial difference between the two may be the finding of fact that there was no PCP applied to all manual workers but that there were underlying reasons for the disparate impact which are hinted at by the ET at paragraph 222. In addition it may be that these paragraphs point up differences between the caretakers and the other claimant groups which may inform the decision on the pool to be applied.

167. In our judgment it may be lawful for the ET to conclude that an appropriate pool of disadvantaged employees, when considering the caretakers’ claim, might be different from the pool which would be appropriate when considering all the other claimant groups.

168. We agree with Mr Cavanagh that the authorities indicate that the choice of pool for comparison is primarily a question of fact, subject to the bounds of logic, and that there is no necessarily single or correct answer to the question. Mr Cavanagh has put forward a series of strong submissions as to why the pool selected by the ET would have been an appropriate one had they approached the matter in the right way. However, as he himself has submitted, the authorities do say that there is not necessarily only one possible correct answer to the question, what is the appropriate pool?

169. In this case the ET has failed to apply its mind properly to the question why it has chosen to limit the pool to the caretakers. It cannot, therefore, be said that the ET has, by its reasons, provided evidence that it considered that the caretakers were different from the other claimant groups for reasons which would entitle it to say that it did not share the relevant characteristics with the other claimant groups so as to justify being in its own pool for comparison. Accordingly, in our judgment, this is a case where it is not open to us to conclude that, had it directed itself properly it would inevitably have reached the same, or any other, conclusion.

170. In our judgment, therefore, Mrs Cooksey’s appeal succeeds in respect of this issue. We remit the case to the same ET for it to consider the question of the relevant pool applying the proper test and considering the relevant authorities including Bailey and Abbott and Grundy and after receiving any further evidence or submissions that might be made.

171. On issue 3, we agree with Mr Campion that the ET applied what it perceived as the Enderby test. It focussed on its finding that the disadvantaged group was at no stage predominantly female, and that, conversely, it was, in 2005, predominantly male as being sufficient to enable it to conclude that there was no prima facie adverse disparate impact on the grounds of gender. The ET did not refer at all to the lower hurdle referred to in Bailey nor to the presence of a number of females in the disadvantaged groups nor to the language in paragraph 30 of Bailey.

172. Whilst we can see that there may be a powerful argument that the claim should not succeed where the proportions of male to female in the disadvantaged group are as they were here, the question is one of fact and degree for the fact finding body, the ET. We are not in a position to conclude, given the fact that the ET did not address the correct test, that it was inevitable that it would have reached the same conclusion had it done so. Accordingly, in our judgment as with issues 1 and 2, concerning the appropriate pool, this issue should go back to the ET for it to determine, if the disadvantaged pool is limited to the caretakers, what its conclusion, as a matter of fact and degree, is as to whether or not the statistics reveal a prima facia case of adverse disparate impact on the grounds of gender requiring the Respondent to address the Armstrong defence and/or the defence of objective justification. Once again the Tribunal should consider this having received any further evidence and/or submissions.

SUMMARY

173. The outcome of these appeals therefore are as follows:

i. The appeal by Trafford in respect of the issue of bonus and attendance allowance is dismissed.

ii. Trafford’s appeal in respect of the on-call allowance is upheld and we substitute a finding in favour of Trafford in substitution for the ET’s decision on this issue in favour of the Claimants.

iii. We uphold the appeal of Ms Cooksey in relation to the issue of the appropriate pool and whether, if the appropriate pool is limited to the caretakers, the statistics show a prima facia adverse disparity impact on the grounds of gender.

iv. We remit the issues in iii to the ET for it to make decisions on those issues having directed itself correctly on the law.

v. We dismiss the other grounds of appeal of Mrs Cooksey.

[1] [2011] ICR 655 at paragraphs 1-2 and 10-12. See, also, the summaries provided by Elias J (as he then was) in Middlesbrough Borough Council v Surtees [2007] ICR 1644 (see in particular at paras 2-11 and Cumbria County Council v Dow (No 1) [2008] IRLR 91, paras 27-29.

[3] Paragraphs 132 (p23), 143 (p25), 159 (p27), 172 (p28)

[13] Which became Article 141 EC and is now Article 157 TFEU

[14] See Recitals (17) and (18) and Lord Walker in Secretary of State for Trade and Industry v Rutherford (No 2) [2006] ICR 785 paragraph 46

[16] In Secretary of State for Trade and Industry v Rutherford (no 2) [2005] ICR 119 at 193, paragraph 35, Mummery LJ pointed out that Article 2(2) of the Directive “describes when a certain state of affairs (i.e. indirect discrimination) exist

[17] See, also, Recitals (1), (8) and (30) and Article 4

[23] See, also, Strathclyde Regional Council v Wallace and others [1998] ICR 205 HL at 211 H to 212 F; Nelson v Carillion Services Ltd [2003] ICR 1256 CA at paragraphs 30, 31, 34 and 39; Home Office v Bailey [2005] ICR 1057 CA at paragraphs 15, 20, 28-30

[24] Note that the statistics are set out at [1991] ICR 392G/H and they showed that the speech therapists were almost exclusively female. The picture was much more mixed in the comparator group, where there was a male majority at the applicants’ level but all 3 groups were predominantly female in the lower grades. There were further statistics before the CJEC as is apparent from [1994] ICR 143H-146F

[31] [1991] ICR 382, Headnote. See, also, the employer’s arguments at 400D/E and the reasoning of the EAT at 400H-402B, and particularly the conclusion at 402B/C, as well as418H-422D

[32] See [1994] ICR 112, 121G-125E and see Neill LJ’s characterisation of the main issue at 125F-H

[35] See, also, paragraphs 7 and 13-19 of the Judgment and eg The Royal Copenhagen case [1996] ICR 51 at paragraph 24 and Orebro [2001] ICR 249 CJEC at paragraphs 50 and 53

[36] See page 124A-D. Note, also, the argument for the applicant at 124H-125A and how Neill LJ framed the issue at 127C-E and 130E-F

[38] See, also, paragraphs 13-19 of the CJEC Judgment at pages 161A-162B and the approach and observations of the Court of Appeal in Bailey & Others v Home Office [2005] ICR 1057 where it was held that in determining whether a prima facie case of sex discrimination arose, there was no sensible difference between cases where a condition or requirement was identified and cases where no such condition or requirement was identified so that where there was a group of employees containing a significant number, even though not a clear majority, of female workers whose work was evaluated as equal to that of another group of employees of the same employer who were predominantly male and who received greater pay, a tribunal was not precluded by the presence in the disadvantaged group of a significant number of men from holding that that disparity in favour of men required justification by the employer.

[39] Pages 150B-151 and see 152H-153B and 154B/C

[42] [2009] ICR 133 CA see paragraph 46 of the Judgment of Mummery L.J.

[43] [2009] ICR 133 CA see paragraph 46 of the Judgment of Mummery L.J.

United Kingdom Employment Appeal Tribunal