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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Diocese Of Hallam Trustee v Connaughton [1996] UKEAT 1128_95_0104 (1 April 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/1128_95_0104.html Cite as: [1996] UKEAT 1128_95_104, [1996] UKEAT 1128_95_0104

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BAILII case number: [1996] UKEAT 1128_95_0104

Appeal No. EAT/1128/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st April 1996

Before

THE HONOURABLE MR JUSTICE HOLLAND

MR J R CROSBY

MR D A C LAMBERT

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DIOCESE OF HALLAM TRUSTEE          APPELLANT

JOSEPHINE ANNE CONNAUGHTON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised 10th June 1996


 


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APPEARANCES

For the Appellant MISS ALISON HAMPTON

(of Counsel)

Messrs Benson Burdekin

Flint & Co

Solicitors

32 Wilkinson Street

Sheffield

S10 2GB

For the Respondents MS DINAH ROSE

(of Counsel)

Messrs Pinsent Curtis

Solicitors

41 Park Square

Leeds

LS1 2NS


 


MR JUSTICE HOLLAND: This is an appeal from a reserved decision of an Industrial Tribunal sitting at Sheffield on 16th August 1995, which decision appears from extended reasons sent to the parties on the 11th September 1995. The issue and the decision have the following genesis. Miss Connaughton entered employment with the Roman Catholic Diocese of Hallam in November and from 1st January 1990 that employment had been as Director of Music. It is material that she was the first holder of such a position. At all events on 6th April 1994 she gave notice of termination of such employment, the notice to expire on 1st September. He then salary was £11,138 supplemented with certain other benefits. The search for a replacement commenced during the currency of the notice: in June the post was advertised in the press with the salary represented to be £13,434 per annum. Four applicants for the post having presented themselves, the Diocese decided (by the 30th July) to appoint one such, a man, at a salary, presumably negotiated with him, of £20,000 per annum. A contract to that effect having been signed on 26th October, this successor took up the position on 1st January 1995.

By an IT1 of 20th January 1995, Miss Connaughton made a complaint to the Industrial Tribunal. She recites the facts and continues:

"I consider that this treatment may have been unlawful because as a woman I may claim equal pay with a man when my work is of equal value to his in terms of demands my work makes on me (for instance in terms of effort, skill, decision)."

In the event when the complaint came on for hearing on 16th August the then respondent, the Diocese, took a preliminary point as to jurisdiction. That point resulted in the decision now under appeal:

"The unanimous decision of the tribunal on a preliminary question is that the applicant has established a prima facie basis for her claim under Article 119 of the Treaty of Rome and accordingly this matter will be listed for a hearing of the substantive issues."

Submits the Diocese, now as appellant, that decision was wrong in law: The tribunal does not have jurisdiction to receive the complaint.

The genesis of the point is as follows:

1. Treaty of Rome 1957, Article 119:

"Each members state shall ... subsequently maintain the application of the principle that men and women should receive equal pay for equal work ..."

2. Directive 75/117 of 10th February 1975, Article 1:

"The principle of equal pay for men and women outlined in Article 119 of the Treaty ... means for the same or for 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."

3. Equal Pay Act 1970 is thereupon extensively amended by the Sex Discrimination Act 1985. The nature of the resultant structure stems from Section 1(1):

"If the terms of contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."

The balance of Section 1 defines an equality clause in terms of comparison with male employees contemporaneously in the same employment. Section 1(3) needs mention:

"An equality clause shall not operate in relation to a variation if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex ..."

Turning to jurisdiction, the following merit recital:

Section 2(1):

"Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, amy be presented by way of a complaint to an industrial tribunal."

Section 2(1A):

"Where a dispute arises in relation to the effect of an equality clause the employer may apply to an industrial tribunal for an order declaring the rights of the employer and the employee in relation to the matter in question."

Section 2(5):

"A woman shall not be entitled in proceedings brought in respect of a failure to comply with an equality claim (including proceedings before an industrial tribunal) to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which the proceedings were instituted."

4. If the complaint is subject to adjudication solely by reference to the Equal Pay Act 1970, as amended, then the Industrial Tribunal does not have jurisdiction, alternatively even with jurisdiction such must fail for lack of evidence. Miss Connaughton cannot invoke a comparison as is required by the statute with male employees contemporaneously in the same employment, for there were none such.
5. It is however common ground that the Act has to be regarded as supplemented by Article 119 to the extent that the maintenance of the application of the principle of equal pay for men and women for equal work is not fully achieved by the Act. This common ground reflects principally a judgment of the European Court of Justice ["ECJ"], Defrenne v Sabena [1976] ICR 547 and ensuing judgements of the ECJ and the Court of Appeal reported as Macarthys Ltd v Smith [1080] ICR 672. The former decision laid down as a principle that Article 119 "... may thus give rise to individual right which the Courts of Appeal must protect." The latter decision, following a specific reference by the Court of Appeal to the ECJ, was to effect (to quote the headnote at page 673):

"that the principle in Article 119 of the E.E.C. Treaty that men and women should receive equal pay for equal work was not confined to the situations in which men and women were contemporaneously doing equal work for the same employer; and that the principle applied to a case where having regard to the nature of the services, a woman had received less pay than a man who was employed prior to the woman and did equal work for the employer ... (and) ... that ... Article 119 took priority over any provision inconsistent with it in the Equal Pay Act 1970 ..."

For present purposes the ambit of Macarthys Ltd v Smith was usefully illuminated by a subsequent decision of this tribunal, Albion Shipping Agency v Arnold [1982] ICR 22, to the effect that the Court of Appeal in the earlier decision was conceding to the Industrial Tribunal's jurisdiction to consider claims for equal pay to which the provisions of Article 119 applied.

So much for the genesis, we now have the point: given that Miss Connaughton in the absence of any male employees that constituted preceding or contemporaneous comparators, seeks to rely on a allegedly subsequent comparator does she have a legitimate ground for complaint such as lies within the jurisdiction of the Industrial Tribunal? The Industrial Tribunal having found in her favour, Miss Hampton on behalf of the appellant, submits that that decision was erroneous in law. Her first point can be speedily dealt with. In reaching its decision, the Industrial Tribunal drew comfort from a letter sent by the applicant to the Bishop dated 9th August 1994. That letter had not been the subject of evidence or submissions and was referred to by the tribunal on its own initiative in the course of the preparation of the extended reasons. Submits Miss Hampton, reliance upon this letter was an irregularity, but in any event its content was inadmissible for the resolution of the underlying point of law. On behalf of Miss Connaughton, as respondent to this appeal, Miss Rose does not demur on this point and it is plain that thus far the Industrial Tribunal was wrong. This however still leaves open the proper resolution of the point and returns us to the further submissions of Miss Hampton. Her case is that the Article 119 gloss upon the ambit of the Equal Pay Act 1970 that allows an equality clause to invoke comparison not just with the contract of a male employee contemporaneously in the same employment, but with that of one such who immediately preceded in such employment, does not allow such a clause to invoke comparison with the contract of a successor male employee. As to this, she make the following points:

6. There is no authority that expressly raises the prospect for the use by a woman applicant of a male successor as comparator.
7. The machinery for achieving equality of pay is contractual, or quasi-contractual. The notion of the `equality clause' readily achieves equality in terms of pay with those contemporaneously in the same employment, or (as she would accept) with an immediate predecessor - or (as she would accept) with an immediate predecessor - in each instance the drafting can be specific and effective. Not so, she submits, if comparison is sought with a successor: per her skeleton argument:

"8. If the Respondent's position is correct, then no breach of contract occurs until the contract has been concluded and the parties are discharged from their obligations. At the time the contract is being performed there is no breach. Thus an employer may not know until the employment is at an end whether or not there is any breach of contract, and any such breach is contingent on the pay and conditions offered to and the sex of the successor. The uncertainty would apply to the contract throughout the period of its performance.

9. Further uncertainty would arise if a successor is offered employment with more favourable terms but then does not accept the offer, or alternatively only fills the post for a short period before leaving. If a second successor is found at a salary scale in accordance with the original employee's salary, does the entitlement to make a claim then evaporate?

10. If comparison is allowed with a successor, as opposed to a predecessor, there is nothing the employer can do to remedy the breach of contract whilst the contract is in existence. In McCarthy's case and in the Albion Shipping case the employers were in a position at all times during the contract of employment to remedy their breach of contract.

11. Where the is uncertainty as to the effect of an equality clause an employer may apply to an Industrial Tribunal pursuant to Section 2(1A) of the Act. If comparison is allowed with a successor, the employer would be deprived of this remedy whilst the contract is in existence. Once the contract is at an end, it will be too late for the employer to remedy the situation if an Industrial Tribunal were to find that the employee's contract is less favourable to a contract for similar work offered to an employee of the opposite sex. This would be unfair."

In response Miss Rose emphasises the purposive nature of Article 119 and its breath and submits that there should be no obstacles to its application ave evidential. She submits that Article 119 affords jurisdiction; she submits that if there is any doubt as to whether its ambit is as contended for then this tribunal should formulate and refer a question to the European Court as was done in Macarthys Ltd V Smith.

The judgment of this tribunal is as follows:

8. On analysis there are two questions at issue. First, there is a question as to the jurisdiction of the Industrial Tribunal: does it have the jurisdiction to adjudicate upon this complaint? Second, there is the question as to the substantive law that the tribunal should apply to the facts as found, if given jurisdiction: what is it?
9. As to jurisdiction, we have no doubt but that the Industrial Tribunal had such. The application invoked the Equal Pay Act 1970 and by amendment, Article 119. The jurisdiction of the Tribunal to receive such a complaint was considered by this tribunal in Albion Shipping Agency v Arnold, op cit, at 30. Having regard to the then recent decision in Macarthy's case, it held that there was jurisdiction to hear complaints based upon Article 119, pointing out the chaotic consequences if that were not the law. This view has not to our knowledge been since challenged and to the comment of this tribunal in Albion Shipping Agency, we add our own: ready concession of jurisdiction enable the Industrial Tribunal to carry out its major function, that is, to make early findings of fact, an exercise which either resolves everything, or which provides this Tribunal with an infinitely better basis for the resolution of questions of law.
10. As to the applicable substantive law, the point is more difficult. That said, we think that vital assistance is given by the European Court of Justice in Macarthys Ltd v Smith op. cit. An analysis of this decision starts with recital of the first two of the four questions that has been submitted to the ECJ by the Court of Appeal:

"(1) Is the principle of equal pay for equal work, contained in Article 119 of the E.E.C. Treaty and Article 1 of the E.E.C. Council Directive of February 10, 1975 (75/117/EEC), confined to situations in which men and women are contemporaneously doing equal work for their employer?

(2) If the answer to question (1) is in the negative, does the said principle apply where a worker can show that she receives less pay in respect of her employment from her employer:

(a) than she would have received if she were a man doing equal work for the employer; or

(b) than had been received by a male worker who had been employed prior to her period of employment and who had been doing equal work for the employer?"

In his opinion the Advocate General advised that the answer to question (1) should be `no'; and then, dealing with the second question, said (at 678):

"... the Court of Appeal asks whether the principle of equal pay may be relied upon by a worker who shows that she receives less pay than would have been received by a man doing equal work for the same undertaking assuming a man were appointed to her post ... In my opinion, an affirmative answer is the logical and necessary consequence to the reply given to the preceding question. The method of making a hypothetical comparison between wage paid to a female worker and that which would have been paid to a male worker, had he held her position, gave rise to debate in the course of the proceedings. However such a comparison is undoubtedly possible when there is a means of referring to wages normally paid or offered to male workers for equal work in the same undertaking."

Turning to the judgment, the Court at page 682 ruled that "the principle of equal pay is accordingly not confined to situations of contemporaneous employment" and gave an affirmative answer to questions (2), adding at page 687 guidance in general:

"As far as the situation in sub-paragraph (a) is concerned it is to be noted that neither Article 119 of the Treaty nor Article 1 of the Directive specify any requirement of an actual comparator of the opposite sex. Questions of proof which might arise would not appear to be insuperable. The fundamental aim of the abolition of sex discrimination would be damaged if a woman always had to find an actual male comparator."

11. Let us now review the complaint of Miss Connaughton in the light of the foregoing. She contending that during her employment, at least in the latter part of it she was receiving less pay in respect of her employment from her employer "than she would have received if she were a man doing equal work for the same employer", see question 2(a). In such circumstances her ability to advance her case has the support of the ECJ as cited above: granted that she cannot point to a contemporaneous or an immediately preceding male comparator, that does not prevent her from inviting the Industrial Tribunal to adjudge her complaint by reference to her male successor as a notional rather than as actual contemporaneous comparator. True, as is implicit in the citation from the ECJ judgment, the advancement of her case on that basis poses evidential problems but their very existence does not constitute some form or stay. We are satisfied that this analysis of Article 119 by the ECJ should be a guide to us and that it provides a sustainable justification for the ruling under appeal. In short we are satisfied that the scope of Article 119 is such as to allow Miss Connaughton to advance a case to the effect that the male successor's contract was so proximate to her own as to render him an effective comparator, as effective as if `actual'.
12. Given that we are satisfied that Macarthys Ltd v Smith identifies a scope for complaints based on Article 119 that is not limited to such as can be founded on male comparators in contemporaneous or immediately preceding employment, but which can include such as may be based upon the use of an immediate successor as a notional contemporaneous comparator, we nonetheless draw strong attention to the finding of facts and the drawing of inferences reasonably arising therefore. Absent an actual comparator, whether contemporaneous or immediately preceding, then inevitably proof of inequality of pay becomes more difficult, not in principle but in practice; likewise the employers' evidential burden as specified by Section 1(3) of the Act may be easier to fulfil, again not in principle but in practice. In her skeleton argument Miss Rose contends "in this case, there clearly was prima facie evidence of discrimination in pay". Once the full facts are before the Industrial Tribunal the latter may be in a position to draw that inference, but the facts will need to be more comprehensive and tendentious than those necessarily truncated matters so far known to us which presently more readily raise inferences as to the impact of labour market forces on an employment never before subject to such. In particular it will be for the Industrial Tribunal when fully apprised of the facts not only to decide whether in this case equality of pay for equality of work can truly be gauged by reference to this male successor's contract, but also to decide the period over which any such comparison can be sustained subject to the overall two year limit.
13. It is form this standpoint that we rule upon the points taken by Miss Hampton and already set out in this judgment. In our view all or some can be powerfully raised before the Industrial Tribunal for its considerations when ruling upon the complaint, but none raise a bar to the advancement of such.
14. Thus we are sufficiently satisfied as to the scope of Article 119 so as to decide this appeal without further reference to the European Court of Justice; and we do so decide it by dismissing the appeal so that the matter is remitted to the Industrial Tribunal (whether the same, or one differently constituted, matters not) for a merits hearing.