Appeal No. EAT/701/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 7th January 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A D SCOTT

	MR G H WRIGHT MBE

THE FINANCIAL TIMES LTD	APPELLANTS

MS J BYRNE & OTHERS	RESPONDENTS

	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
Middx
HA7 4XL

	MR JUSTICE WOOD (PRESIDENT):  In these proceedings there are now some eleven Applicants, originally there were rather more, who are women employed by the Respondents "The Financial Times Ltd".  On the 15th February 1990 they each of them filed Originating Applications alleging that they were the subjects of discrimination under the Equal Pay Provisions of the Equal Pay Act.  They also relied at that time on Article 119 of the Treaty of Rome.  Subsequently, in correspondence, it was made clear that their claims were only going to be based on the provisions of the Equal Pay Act 1970, but of course, as was pointed out, the Statutory Provisions in this Country are, as indicated by the House of Lords, to be interpreted in the light of the progress made in European law through the judgments of the European Courts of Justice at Luxembourg.

	A Schedule has helpfully been prepared at page 23 of the main bundle, which indicates the present position of the claims.  

	Four of the Applicants claimed "like work" under the provisions of Section 1(2)(a) and they all claim equal value under the provisions of 1(2)(c).  
                                                       
	There now remain, after certain amendments, some six comparators and they are variously chosen by various applicants so that the combinations are fairly complicated. The reason of course for the persistence in the Equal Value claims by those who have in fact succeeded on the "like work" claim, is because some of the comparators are earning higher salaries and therefore they stand to have a bigger increase if they succeed.

	During 1990 there were various pleadings, to which we will refer in due course.  The first decision of an Industrial Tribunal is dated the 27th November 1990.  At that Hearing, four of the Applicants succeeded on the "like work" claim.

	The second Hearing took place on the 28th March 1991;  the Decision is dated the 16th April when it was sent to the parties and on that occasion the learned Chairman, Mr Flint, was sitting alone.  The issue as it was understood to be by Mr John Bowers, appearing for the "Financial Times", was that of Further and Better Particulars.  But in fact Miss Gay, who was then representing the Applicants, raised the issue of the burden of proof during the course of her argument in support of her claim for Further and Better Particulars and the learned Chairman gave a Decision on that issue at that time.  Miss Gay failed in her application for particulars.  There was an Appeal to this Court which was heard by us on the 19th June 1991.  There was also a cross-appeal.  Miss Gay sought the Further and Better Particulars;  Mr John Bowers for the "Financial Times" cross-appealed on the basis that the learned Chairman sitting alone had no jurisdiction to reach a Decision on the burden of proof, a point of law.  After argument that was clearly found to be correct and as a result there was a Consent Order on that day; the cross-appeal was withdrawn on the understanding that it was open to the Respondents to argue the matter afresh.

	The Appeal was heard on the Further and Better Particulars and on the 16th July of last year the Appeal by Miss Gay for the Applicants was dismissed and this Court gave a short Judgment giving its reasons for that conclusion.

	On the 8th November of last year, a third Hearing took place before the Industrial Tribunal.  On this occasion the Tribunal sat as a Full Tribunal.  The learned Chairman, Mr Flint and two Members.  The two issues before the Tribunal were first an application by Mr Bowers to adjourn the substantive Hearing which was due, I think, to start at the beginning of this present week, and secondly, by agreement it was sought to reargue the point on the burden of proof.  

	The Judgment following that Hearing is dated the 10th December 1991;  the adjournment was refused and it was found that the defence under Section 1(3) of the Equal Pay Act 1970 was for the Respondent, the employer, to prove.

	On the 13th December there was a Notice of Appeal to this Court which is the foundation of the present Hearing and there is also an application before us to refer certain questions to the European Court of Justice.

	The present Appeal therefore falls into three parts;  first, there is the issue whether or not the Industrial Tribunal in the exercise of its discretion was right in reaching the decision to refuse the adjournment;  the second issue is on the burden of proof point;  and the third issue is the application to refer certain questions to the European Court of Justice.

	This Appeal Tribunal decided to hear these issues separately, one after the other, and to give a decision upon them as they are argued, thus this Judgment deals only with a question of the adjournment.

	The basis of the application that the case should be "stood out" is that the decision of the European Court of Justice in Enderby v. Frenchay Health Authority should be awaited. 

	The Tribunal set out in its Decision the arguments on both sides and then gives its reason for its Decision in paragraph 6 which I now read:
"Our view is that the matter should not be further adjourned.  We appreciate that it is probable that the answers of the European Court of Justice to the questions in Enderby may be decisive of the whole or part of the matters which we have to decide.  In our view however there is a considerable amount of evidence to be heard and facts to be found in the case before us before we can determine what the application of the law is to this particular case.  It is in our view not fair to either party that the matter should be further delayed.  If we do adjourn the recollection either of the applicants or of the witnesses called to give evidence on behalf of the respondents will be further dimmed.  We think that the course we should take in justice to all parties is that we should hear the evidence commencing on the 6 January that we should make findings of fact on the basis of the evidence which we hear and then that we should either come to a decision in the alternative based on whether the answers to the questions posed to the European Court of Justice are in the affirmative or in the negative or alternatively having found the facts we should then adjourn the determination of the decision until the result of the questions posed to the European Court of Justice is known.  Which course we should take is a matter which can be decided whence the evidence has been taken."

That decision not to adjourn was taken under the power in the Industrial Tribunal Rules under Rule 12(2)(b) this reads:
"12(1)  Subject to the provisions of these Rules, a tribunal may regulate its own procedure.

(2)A tribunal may, if it thinks fit, -

(a)......

(b)postpone the day or time fixed for, or adjourn, any hearing...." 

	There is a wide discretion.  The approach in this Appeal Tribunal to decisions based upon the wide discretion of an Industrial Tribunal was considered recently by the Court in the case of Adams v. West Sussex County Council [1990] ICR 546, we drew the principles from the early decisions and in particular we had to decide whether to follow one particular authority or another, but the principles we enunciated at p.550G are as follows:
"In giving its decision in interlocutory proceedings an industrial tribunal is exercising its discretion, but that discretion must be exercised within the powers given to the industrial tribunal on that issue and within the relevant legal principles which have been evolved largely through decisions of appellate courts.  It is the exercise of a judicial discretion.  It seems to us desirable, and indeed we would have expected, that the same principle would apply to interlocutory appeals as for final appeals even though the former will in the main be the result of the exercise of a discretion.  Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues;  (a) Is the order made one within the powers given to the tribunal?  (b) Has the discretion been exercised within guiding legal principles?  (eg as to confidential documents in discovery issues;  (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B.223?"

We followed the case of Medallion Holidays Ltd v. Birch  [1985] ICR 578 but not the case of British Library v. Palyza [1984] ICR 504.  In fact I note from the very last few lines of the Judgment in Adams that the Court of Appeal had recently approved of Medallion Holidays.

	So those are the principles and indeed those principles were enunciated in the Court of Appeal in the case to which we did not refer in Adams but to which we did refer in other cases and it has helpfully been cited to us in Carter v. Credit Change Ltd [1979] ICR 908.  The passages to which we were referred in the leading Judgment of Lord Justice Stephenson are at page 917 E-F, page 918 at F, and 919 again at F.  I would only refer to that last passage which reads just above F as follows:
"All the reasons which he gave seem to me to be good reasons for the decision to which he came;  many important issues are indeed the same in both proceedings;  and if it were necessary for me to express my agreement with his exercise of discretion I do not think I would find any difficulty in doing it;  but I do not regard it as the function of this court, or the function of the appeal tribunal, to approve the exercise of the industrial tribunal's discretion to postpone.  All the appeal tribunal has to do is to see whether there is any error in law, and they can only do that, it seems to me, in accordance with the guidance given by the precedents of the appeal tribunal in other cases:  they must look to see whether there is anything wrong in law with the decision, and whether it is so surprising that something must have gone wrong with it and that it could be characterised as perverse or a decision which no reasonable tribunal could have come to."

That being the approach, the decision of the Tribunal as set out in that paragraph 6 seems to us to involve a number of bases.  The first, the Tribunal decided, that the answers from the European Court of Justice in Enderby was only maybe decisive of the whole or some of the matters involved.  Secondly, that they took the view that there was much evidence to be heard and facts to be found before they could apply the law.  Thirdly, that it was not fair to either party to delay the matter further.  Fourthly, that it was not just to the parties, and that may be synonymous with fair, and lastly they decided that they could find the facts and then thereafter either to adjourn the whole matter for submissions to be made later, based upon the findings of fact or possibly deal with certain issues in the alternative depending on the answers from Luxembourg.  It seems to us, if we may respectfully say so, that the latter may not be very satisfactory.  The principle argument advanced by Mr Bowers is based on Enderby but he also sought to draw a parallel from the situation which has been common recently arising out of the case of Barber in the European Court, that as we know was a case involved with the question of discrimination under pension schemes.  We cannot accept that as a fair analogy, because it seems to us from our own experience and indeed from the submissions of Mr McMullen that in Barber the facts were really not disputed. Mr McMullen also submits, that usually those cases were adjourned by consent and that in the Barber case the construction of the documents depended upon the view taken in the European Court whereas in the present case this is really a question of construction of the United Kingdom legislation.

	Enderby itself is a complicated case raising a number of issues and it must be born in mind that the European Court of Justice does not always answer every question put to it and in some instances the decisions do not answer problems in other slightly different cases.

	The present issues which will arise are founded upon the provisions of Section 1(3) of the Equal Pay Act 1970.  That reads:
"An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex"

As it was put during argument it must not be due to the fact that the Applicant is a woman.

	The proving of the factor and the causation Mr Bowers accepts is for the employer and helpfully a schedule has been prepared of the factors which have been pleaded and the comparators in respect of whom they are said to be relevant.  There are some twenty seven different defences, some twenty four are specific to comparators but of fourteen different types and some four are of a general nature.  The one which it is conceded is touched by Enderby is the defence based on collective bargaining arrangements and that, submits Mr McMullen, is the only one which is touched by Enderby.  Mr Bowers does not concede that and he raises a number of other arguments which relate to several other factors, however, the reply from the Applicants to the pleading of the employers raises three main defences.

	The analysis of discrimination which was given to this Court in Enderby by Mr Patrick Elias and adopted by us is helpful as a background.  Enderby [1991] ICR 382 and at page 397 between D and E will be found the passage to which we refer, there we say:
"We are grateful to Mr Elias for his analysis of the different forms of sex discrimination which are now recognised by the laws of the United Kingdom, the European Economic Community and the United States of America. Based upon his analysis we would sub- divide them as follows:

Direct discrimination

 1.  The respondent who intends and wishes discrimination.

 2.  The Respondent who intends discrimination but who bears no ill will - "the apologist."

3.  The Respondent who does not intend discrimination, does not wish it and may well be unaware of it, but who discriminates by stereotyping work as "womens work."  This is sometimes to be found in particular pockets of employment.

Indirect discrimination

This constituted by the imposition of some criterion, condition or requirement which has a disproportionate effect on women because they are women and which can take one of the following forms.

4.  The respondent who imposes that condition with the object of disadvantaging women (this is akin to direct discrimination).

5.  The respondent who without any intention of causing disadvantage to women imposes a condition which is not overtly discriminatory - it is neutral in effect - but which has that effect.  In some cases this can be proved by direct comparison between the applicant and his or her comparator, but in others this is proved by taking appropriate groups or pools for the applicant and the comparator (comparing like with like) and showing that the applicant is a member of her pool, which is predominantly female, is unable or less able to meet the requirement than the comparator as a member of his pool which is predominantly male."

	The Applicants raised therefore, in their pleadings in this case, the allegations that the factors relied upon, each and every one of them, are invalid and do not satisfy the provisions of Section 1(3) either first because they are direct discrimination or secondly indirect discrimination, or third, where it is raised that this was a pay practice and that is to be found in the reply of all the Applicants where they say at page 199 of the documents:
".... the Applicants' case is that there was indirect sex discrimination and/or the application of a pay practice which impacted disproportionately to the disadvantage of women in the payment of the Applicants and comparators and that the Defence is thus tainted by sex discrimination and cannot succeed."

	To the Industrial Members sitting with me today "Pay practice"  there used is really the equivalent of stereotyping in their commercial understanding, but it is used here as being the mere fact that there is a difference in pay and that the applicants form a pool of women and the comparators form a pool of men.  Thus the issues in the case before us are on the application of factors;  the causation of factors, and whether or not they are discriminatory.  There is the one general defence which is conceded by Mr McMullen to depend, certainly in part, or mostly in Enderby but Mr Bowers submits that there are some other factors.

	Enderby itself raised a number of issues.  First, it raised the issue of what has been called the Pay Practice;  secondly, it raised the issue of the relevance of collective bargaining as a genuine material factor;  thirdly, it raised the issue of market forces as a defence, but it is right that the burden of proof issue was not one that was raised in Enderby. 

	On the collective bargaining issue there is an important distinction.  In Enderby the collective bargaining was held to be wholly untainted by discrimination.  In the present case that is going to be one of the main issues and the "Financial Times" makes a serious and clear allegation against the Trade Union involved, SOGAT, that at the time the control over pay was essentially in the hands of the Trade Union and that if there was discrimination it was discrimination of the Trade Union and not of the "Financial Times".  Those are all matters for subsequent decision, and there may be many other issues raised in that connection.

	We have seen the order of the Court of Appeal in Enderby and the questions to be put to the European Court of Justice  It seems to us that there are distinctions to be drawn from the likely facts in this case.

	With that general background the case put forward by Mr Bowers was that the discretion exercised by the Industrial Tribunal was erroneous in that the discretion exercised was as if this case was a case under United Kingdom law, whereas what mattered was the view taken by the European Court of Justice in Luxembourg and therefore there should have been a different approach;  that one should be readier to adjourn and await a decision from Luxembourg than one would perhaps awaiting a decision here in the Court of Appeal or the House of Lords.

	In the first place we are unable to accept the valid distinction between the exercise of the two discretions.  But it is also to be noted, that this case depends upon UK law, it is brought only under UK law and not under European law.  Secondly, Mr Bowers said, the costs will be increased because there may be some evidence which may be unnecessary if one awaited the decision in Enderby;  that could be so, it is impossible to tell quite what that saving would be.  Thirdly, he said that there was no prejudice to the Applicants financially, but Mr McMullen answers this and points out, validly in our view,  that interest does not run on an award until given, and in fact this is a situation where the Applicants, four of them anyhow, have already succeeded on the "like work" claim.  Next, Mr Bowers submits, that a split hearing is highly undesirable.  That appears to us, at first blush, to be a sound point, but it seems to us on reflection that the embarrassment of a split hearing is very much the less if only the facts are found and subsequently the legal submissions are made on the basis of those facts.  If that is so then the criticism made substantially disappears.  But in any event, it occurs to us, that a hearing might have to be divided because of the need ultimately on certain findings of fact, for an employer to justify in cases of indirect discrimination. 

	May we just explain that approach.  In the first place here, either these Applicants have succeeded on "like work" or it is assumed that it is work of equal value and the defence being set up is a Section 1(3) defence.  It seems to us although of course the procedure is entirely a matter for industrial tribunals but it may be that the convenient course is for the employers to open, to call the evidence on the factors, the causation of those factors and no doubt with the substantive case that they are not in any way the difference of sex.  That evidence will be cross examined, certain matters will be put to the witnesses, there may be certain admissions, there may not, but at the end of that either the Applicants will decide to call no evidence and argue the case on the evidence so far or, more likely, they will call evidence and as indicated here they will be raising the defences that those factors, some or all or many, are directly discriminatory or indirectly discriminatory, or thirdly, they will set up what has been called the Pay Practice Defence.  If, and in so far as having heard all the evidence the tribunal reaches the decision that some of those factors are indirectly discriminatory then it will be for the employer to justify them, objectively justify them.  In that case it may be that the Tribunal will give a decision on the facts it has found so far and then leave the justification to a separate hearing because at that stage it is probably fair that the parties should know how the facts have been found up to that juncture.  Ultimately, facts will all be found and then there can be argument on the law.  It is in that sense that we envisage there might be a division of hearing but if the facts are kept separate from the law we see no embarrassment to the parties. 

	Lastly, the case for the "Financial Times" is that the evidence will be much slimmer if there is an adjournment and the Tribunal awaits the decision from Luxembourg and that the Industrial Tribunal can only really decide and apply the facts against a known and accepted law, that evidence in vacuo is most unsatisfactory and the permutations are enormous.  This is to some extent true, but the issues here are complicated enough and in our judgment the Tribunal were entitled, looking at these matters to take a view upon it.

	Mr McMullen for the Applicants, relies upon the reasoning in the Decision in paragraph 6 and has also pointed out that the Applicants had been waiting a long time.  As we mentioned, the Originating Applications were in 1990;  he points out that one of his clients is soon to reach the age of 60;  another is critically ill, as to the others there are changes being made in what he terms "the media" and they ought to know where they stand;  what their salaries are likely to be and he indeed submits that it would be wholly unfair to delay and hold them back because of litigation elsewhere between other parties.  We accept that submission.  Perhaps the most formidable submission he made however, is that the Applicants could still win outright on certain findings of fact without ever having to consider the issues of law raised by Enderby and that having looked at the pleadings seems to us a possibility.

	We have weighed up the issues;  we have set out the law as we find it;  we have looked at the Decision and reasoning of the Tribunal and the submissions of the parties and we have reached the conclusion that it would be quite wrong to say that the exercise of the discretion by this Tribunal fell outside the bounds which the Tribunal could reach in the light of the authorities to which we have referred.  On this particular point therefore this Appeal is dismissed.