Appeal No.	 EAT/28/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 January 1999

Before
HIS HONOUR MR JUSTICE CHARLES
MR L D COWAN
MR D A C LAMBERT

FARNBOROUGH COLLEGE OF TECHNOLOGY	APPELLANTS

MRS G CHOWNS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR W EMERSON
(Of Counsel)
Messrs Sherwin Oliver 
(ref  pdb/ad/farnboro/999)
Solicitors
The Old Manor House
Wickham Road
Fareham PO16 7AR	
For the Respondent	MISS L CHUDLEIGH
(Of Counsel)
Michael Scott & Co
Solicitors
27 Britannia Street
London
WC1X 9JP	

	MR JUSTICE CHARLES;	In this case the Appellant is the Farnborough College of Technology who appeal against a decision of an Industrial Tribunal, sitting at Southampton on 10 October and 28 November 1997, that the Respondent’s complaint under the Equal Pay Act 1970 was well-founded by a majority decision - the legal Chairman dissenting.

	The first ground of appeal is set out in the Notice of Appeal in the following terms:

“6. (a)     In determining whether there was a material difference between Mrs Chowns’ case and that of the male comparator the Industrial Tribunal wrongly required the Appellant to objectively justify the grounds for the difference in pay.   The learned Chairman relied wrongly upon the case of Rainey v Greater Glasgow Health Board [1987] IRLR 26.   The proper approach to this issue is set out in the case of Tyldesley v TMC Plastics [1996] IRLR 395.”

	That ground refers to paragraph 8(e) of the extended reasons, which was in the following terms:

“In considering this defence raised by Farnborough College of Technology the tribunal directed itself, applying the authority of Rainey v Greater Glasgow Health Board [1987] IRLR 26, that under s. 1(3) of the Equal Pay Act 1970 the onus lies upon the employer to demonstrate objectively justified grounds for the difference in pay between the woman and the man.”

	It is clear that that paragraph is wrong and it is accepted, very properly, on behalf of Mrs Chowns by her Counsel that the Tribunal directed itself incorrectly in paragraph 8(e) of its decision.   Nonetheless, we are invited, taking the approach described by Sir John Donaldson in O’Kelly v Trust House Forte Plc [1983] ICR 728 and in particular the passage in the judgment of Sir John Donaldson at page 764 B - D, which reads as follows:

“Even if the Tribunal had been correct in holding that the Industrial Tribunal’s reasons were not sufficiently clear this would not have entitled it to arrogate to itself the full functions of an Industrial Tribunal and so reach its own decision.   The Appeal Tribunal can correct errors of law and substitute its own decision insofar as the Industrial Tribunal must, but for the error of law, have reached such a decision.   But, if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly the Appeal Tribunal can only remit the case for further consideration.”

	In our judgment, reading the extended reasons, this is a case where it is undoubtedly an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly.   

	We were referred in particular to paragraph 8 (f) of the extended reasons by Counsel for Mrs Chowns, which reads as follows:

“It is with regard to this aspect that there are divergent views between the chairman and the members of the tribunal.  The majority view of the members is that they reject the explanation given by Farnborough College of Technology for the difference in pay.   They are not satisfied that Farnborough College of Technology casts its net sufficiently wide when recruiting engineering lecturers properly to justify the difference in pay on the ground contended.   They find that if Farnborough College of Technology were to advertise in specialised technical/professional journals and/or newspapers which have a national circulation:
(i)    it would reach a wider pool of potential applicants
(ii)   it would reach applicants living in less affluent areas than Farnborough where wages in competing occupations would be reduced
(iii)  it would be likely to reach suitably qualified persons who were unemployed and seeking work and therefore would not be competing with persons already engaged in highly remunerated employment”

	Obviously this paragraph immediately follows paragraph 8(e) in which the Tribunal misdirected themselves.   In our judgment, put at its lowest, the reasoning in paragraph 8(e) contains objective elements and it is, as we have said, at least an open question as to how the majority in the Tribunal would have decided the question if the correct test had been posed and applied by them.

	The only remaining issue, therefore, is whether we should remit this case to a differently constituted Tribunal, or to the same Tribunal.

	It is urged upon us that to remit to the same Tribunal would save costs.   It is submitted that this is a simple and discrete error of law;  the Tribunal can take that, effectively, on the chin and exercise their judgment as to the facts on a new basis and that can be done and, importantly, can be seen to be done fairly.   

	We accept there is force in the points made as to saving costs and time but, in our judgment, there would be real difficulty for this Tribunal if it was to reconsider this matter.   The question of approach and them asking themselves the wrong question is not so easily hived off from their thought processes and their original reasoning and the disagreements that existed in respect of it.   If I had made the same mistake and the case was remitted to me I would find difficulty in reconsidering the relevant factual issues and, in ensuring that I was free from trying to justify my earlier reasoning or in explaining why, in any event, I got it right, if that was the conclusion I reached:   in our judgment these points are likely to cause the Members of the Tribunal difficulty.   Further, in the circumstances of this case, it is our judgment that justice would not be seen to be being done if the Members of the original Tribunal reheard this case.   

	Finally we add that it was common ground that the only issue that needs to be re-heard is the defence under section 1(3).   There is no issue as to the earlier parts of the decision relating to the comparator.   We therefore allow the appeal and direct that the matter be remitted to a differently constituted Tribunal to hear the issues as to the section 1(3) defence.   The matter is therefore remitted on the basis that the findings as to like work are correct.