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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Financial Times Ltd v Byrne & Ors [1992] UKEAT 701_91_0701 (7 January 1992) URL: http://www.bailii.org/uk/cases/UKEAT/1992/701_91_0701.html Cite as: [1992] UKEAT 701_91_701, [1992] UKEAT 701_91_0701 |
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At the Tribunal
THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)
Mr A D Scott
Mr G H Wright MBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR J BOWERS
(of Counsel)
Saunders Sobell, Leigh & Dobin
20 Red Lion Street
Holborn
LONDON WC1R 4AG
For the Respondents MR J MCMULLEN
(of Counsel)
Robin Thompson & Partners
Compass House
Pynnacles Close
Stanmore
Middlesex HA7 4ZL
MR JUSTICE WOOD (PRESIDENT) In this appeal we have already disposed of the first issue - adjournment - and supported the view expressed by this Industrial Tribunal that the case should be heard as soon as possible, at least so far as the facts are concerned. There has as yet been no substantive hearing and the pleadings are extensive .
The second issue in this appeal is against the finding of the Tribunal that "The burden of proof under S.1(3) of the Equal Pay Act 1970 is solely upon the employers." As they put in the reasoning, "We are ...unanimously of the opinion that S.1(3) requires the employer to prove not only that the variation is genuinely due to a material factor but requires him to prove also [that] this is not due to the difference of sex." Their finding is said to be contrary to legal principles in that it requires a party to prove a negative and is contrary to the indications given in the Sex Discrimination Act 1975: Rainey v. Greater Glasgow Health Board [1987] ICR 129: and EEC Law.
The Equal Pay Act 1970 came into force in 1975. It was substantially amended by the 1975 Act and together with the Race Relations Act 1976 is to be read as part of the Code against discrimination. It is "an Act to prevent discrimination as regards terms and conditions of employment between men and women". For a consideration of the general background see Enderby v. Frenchay Health Authority [1991] ICR 382, 403G. The intention of the Act is not to eliminate all differences in pay between men and women, but in cases of like work or equal value to eliminate that difference if it is based on sex, ie because she is a woman - the fact of being a woman. This is emphasised by the European Court under European Law in the decision of that Court in Jenkins v. Kingsgate (Clothing Productions) Ltd (Case 96/80)[1981] ICR 592, where in the judgment of the Court in paragraphs 10 and 13 the following appears -
"The difference in pay prohibited by that provision (Article 119) are therefore exclusively those based on the difference of the sex of the workers."
Under Paragraph 13
"... the inequality in pay will be contrary to Article 119 of the Treaty where ... the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex."
Thus, the applicant who brings herself within the "like work" or the "equal value" provisions of S.1(2)(a) or (c) is entitled to an equality clause giving equal pay subject to the defence open to an employer under S.1(3). So far as relevant that reads -
"An equality clause shall not operate in relation to a variation between a woman's contract and a man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex ..."
The law on discrimination is still dynamic and when the statutes were drafted more than 15 years ago no one could have foreseen the problems which have arisen in the interim. It is important that the law should develop as experience is gained.
During the interlocutory stages the learned Chairman has required each party to show its hand on the issues which will fall to the Tribunal to decide in considering the S.1(3) defence. The employer has set out its case, identifying the factors relevant to each or all of the comparators and it is clear from the Applicants' pleadings that the intention is to set out a positive case that there is direct or indirect discrimination. We would respectfully endorse this type of approach as it avoids surprise and helps to identify issues.
The Tribunal found that the wording of S.1(3) is unambiguous and that where a defence is raised under that subsection it is, in the final decision, for the employers to satisfy the Tribunal on the balance of probabilities that each part of that subsection is established. They say so in the passage which we have quoted. We agree.
It is submitted that this is not what the Tribunal meant because of the use of the phrase "We prefer to read the subsection as simply requiring the employer positively to prove three things, genuineness material factor and the existence of a reason which is not tainted with sex discrimination." Read literally, this sentence might be said to refer only to two parts of S.1(3), but we prefer to read the paragraph as a whole and to adopt the clear conclusion in its final paragraph to which we have already referred.
What then are the arguments against this conclusion?
The first is based upon Rainey and Enderby. It is argued that towards the end of his speech - at p.145C-F Lord Keith of Kinkel in Rainey indicated that the principles of S.1 of the Sex Discrimination Act 1975 should be applied when considering the existence of discrimination under S.1(3) of the 1970 Act and that those principles must include the burden of proof which, under the 1975 Act and the 1976 Act is upon the applicant. It is said that this inference is also to be drawn from a careful reading of Enderby. I do not recollect that the burden of proof was ever raised in Enderby. It was certainly not a live issue. We find ourselves unable to accept that Lord Keith intended to indicate that the onus of proof under the last part of S.1(3) was on the applicant. There are passages in his speech which tend to support the view taken by the Industrial Tribunal. We have in mind a sentence at p.137G where he said,
"They found it on S.1(3) of the Act and undertook the burden of satisfying its provisions, ... ."
We would also refer to the passage at p.145E where in referring to S.1 of the 1975 Act he says this -
"This provision has the effect of prohibiting indirect discrimination between men and women. In my opinion it does not, for present purposes, add anything to S.1(3) of the Act of 1970, since, upon the view which I have taken as to the proper construction of the latter, a difference which demonstrated unjustified indirect discrimination would not discharge the onus placed on the employer. Further, there would not appear to be any material distinction in principle between the need to demonstrate objectively justified grounds of difference for purposes of S.1(3) and the need to justify a requirement or condition under S.1(1)(b)(ii) of the Act of 1975". (Our emphasis)
Secondly, it is contended that as the Discrimination Acts are to be read as one Code, it is anomalous for the applicant to be required to prove discrimination under the 1975 Act and the 1976 Act, but not under the third of the Acts. The answer to this must be that the 1970 Act was substantially amended by the 1975 Act and that the Parliamentary draughtsman with full knowledge of the two Acts has used plain words.
Thirdly, it is argued that it is contrary to English law that a party should be required to prove a negative and the burden of proving a fact is upon him who alleges it; to accept the contrary proposition would involve one party seeking to establish some proposition where the knowledge of the primary facts lies with the other party. Whilst accepting these general propositions it does not seem to us that this can displace the clear wording of the section.
Lastly, reliance is placed upon the provisions of Article 119 of the Treaty of Rome and Articles 1, 3 and 6 of Directive 75/117. Reliance was also placed upon the Dekker case [1991] IRLR 27 and Integrity v. Rouvroy [1991] IRLR 176. We have studied those cases and the provisions of the Treaty and the Directive, but are unable to discern therefrom that there is any help as to the onus of proof under the 1970 Act. We are aware that consideration is being given to a Directive on the burden of proof but that does not seem to us to indicate one way or another where the onus may lie prior to the introduction of that Directive.
For the reasons given we would dismiss this appeal as the only issue which was decided by the Industrial Tribunal seems to us to be correct in law.
However, during submissions it seemed that Mr Bowers for The Financial Times envisaged that problems could arise during the hearing of the evidence and before a final decision is made on the S.1(3) defence. The procedures to be adopted in equal pay and other discrimination cases have been under criticism and the Court of Appeal has recently taken the opportunity to give guidance on the approach of Industrial Tribunal to the findings of fact in those decisions. See King v.The Great Britain - China Centre [1991] IRLR 513. That case was brought under the 1976 Act. The burden of proof is always upon the applicant, but where a prima facie case of discrimination is established, then a Tribunal will be looking for an explanation or defence and will need to consider the positive case being put forward by the employer. It is in many ways the reverse of the present situation.
Although procedure is essentially for each Tribunal in the circumstances of the case which is before it, the members of this Court envisage a possible course for the present case to be as follows.
As the Applicants have either proved like work or for the purposes of the present issues are presumed to be involved in work of equal value, the burden will be upon the employer to prove the defence under S.1(3). It will therefore be for The Financial Times to open the case. Evidence will be called seeking to establish with respect to each comparator the genuine material factor which causes the difference in pay and that that factor was not based upon sex. It was not the difference of sex.
The Applicants will cross-examine. The evidence will be tested; their cases will be put to the employer's witnesses and admissions will be sought.
At the end of the employer's evidence the Applicants will decide whether or not to call evidence. They may be content to rely upon the evidence already given but it seems most likely in view of the pleadings that they will seek to put forward a positive case themselves, alleging direct or indirect discrimination. In considering that discrimination the principles applicable under S.1 of the 1975 Act will apply: see also the helpful analysis by Mr Patrick Elias QC in Enderby at p.397E.
At the end of this stage of the evidence the Tribunal must reach its decision on the facts. It will decide what facts it finds. If those facts base a finding of direct discrimination then the employer will have failed to satisfy the defence under S.1(3). However even if there is no finding of direct discrimination, there may be findings of fact which point towards indirect discrimination. In those circumstances the Tribunal may well consider that a decision should be given on the facts at that stage because thereafter it will be for the employer to justify and in order for him to do so it will be essential for him to know the way in which the facts have been found against him up to that stage. Thus, there may well be a need for an adjournment and a decision at that stage. We are well aware that this does not ease the task of Industrial Tribunals, but the whole of this procedure is complex and we only seek to make a suggestion in order to clarify the stages for all concerned.
It follows therefore that this appeal is dismissed.
