Appeal No. UKEAT/0424/06/LA
	UKEAT/0031/07/LA
	
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January, 
	1 and 2 February 2007
Judgment handed down on 23 March 2007

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS M McARTHUR 
MR P SMITH

MS P BAINBRIDGE & ORS	APPELLANT

REDCAR & CLEVELAND BOROUGH COUNCIL	RESPONDENT

REDCAR & CLEVELAND BOROUGH COUNCIL	APPELLANT

MS D WILLIAMS & ORS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBIN ALLEN 
(One of Her Majesty’s Counsel)
And Mrs Andrea Morrison 
(of Counsel)
Instructed by:
Messrs Stefan Cross
Solicitors
Buddle House
Buddle Road
NEWCASTLE-UPON-TYNE
NE4 8AW
	
For the Respondent	MR JOHN CAVANAGH
(One of Her Majesty’s Counsel)
And Mr Richard Leiper
(of Counsel)
Instructed by:
Sharon Langridge
Employment Lawyer
8 Stratford Grove Terrace
NEWCASTLE-UPON-TYNE
NE6 5BA	

SUMMARY

Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation

This case raises three issues, two of which are of particular significance in the field of equal pay. 

1. Do employees whose jobs are rated as equivalent under a job evaluation scheme have the right to seek compensation going back up to six years (assuming their jobs and those of their chosen comparators have not changed in any material way in that period)?

Employment Tribunal held that they did not and the EAT agreed.

2. Is an employee only allowed to pursue to judgment an equal pay claim in relation to one comparator with respect to the same period of time? Would the employee thereafter be precluded from seeking to establish an infringement of the equality laws by comparing herself with another comparator on the basis that the matter was res judicata? Alternatively, on the grounds that she had to make an election as to which remedy she wanted and has made that election?

Employment Tribunal held that she was not prevented from making such claims, and the EAT, by a majority, agreed. The EAT recognised that there is potential for abuse by naming multiple comparators, but that will have to be dealt with by a robust application of the Tribunal Rules.

3. Was the Tribunal right to hold that there was no breach by the employer in failing to carry out the grievance procedures because of reg 10 of the Employment Act 2002 (Dispute Resolution) Regulations [2004]? Was the Tribunal justified in indicating that had there been a breach then it would have increased compensation by 5% pursuant to ss.31(3) and 31(4) of the Employment Act 2002?
 
The EAT held that the Tribunal had misconstrued regulation 10; that there was a technical breach of the regulations by the employer in failing to hold meetings to consider grievances; but that this was plainly an exceptional case falling within the terms of s.31(4), where it would not be just or equitable to grant an uplift of compensation.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is a further saga in the horrendously complex litigation involving equal pay claims against the Redcar & Cleveland Borough Council.

2.	We have already considered a number of the points which have arisen in this litigation in our decision in Redcar and Cleveland Borough Council v Bainbridge [2007] IRLR 91 . For a more detailed understanding of the background of this litigation we refer back to that judgment, paras 7-22.  We will here deal only with any facts which have a bearing on the issues we now have to determine.

3.	There are three issues we have to decide. The first is this. A number of Claimants in this litigation have had their jobs rated under what is termed the Green Book job evaluation study. This came into force on 1 April 2004. The issue is whether they can rely upon that job evaluation study to pursue claims under s.1(2)(b) of the Equal Pay Act in respect of a period up to six years preceding the implementation of that study. The Tribunal referred to this as the “backdating issue” although Mr Allen says that it is more accurately described as a retrospectivity issue - whether a job evaluation study has retrospective effect - since the question is whether the job evaluation study can retrospectively determine the Claimants’ equal pay rights.  Provided it is understood that this is what “backdating” means, we see nothing wrong in adopting that phraseology, which is useful shorthand.  The Tribunal found that the Claimants were not entitled to claim backdating in that way and the Claimants appeal that decision.

4.	Second, there is an issue whether the employers were in breach of the statutory grievance procedure under s.29 and schedule 2 Part I of the Employment Act 2002 and if so, whether any compensation awarded should have been uplifted pursuant to s.31(3) of that Act. The Tribunal found that there was no breach but that if there were, the uplift in the exceptional circumstance of this case should have been five per cent. Both sides appeal those findings. The Claimants say that the Tribunal ought to have found that there was a breach; the Council contends that there were other grounds on which the Tribunal should have found that they were not in breach, and that in any event there were exceptional circumstances which meant that even if they were in breach, no uplift at all should be awarded. 

5.	The third issue is what has been described as the res judicata point. The essential argument here, advanced by the Council, is that once the Claimant has pursued an equal pay claim to judgment in respect of a particular period of time then she cannot thereafter seek to run another equal pay argument in relation to the same pay period but with a different comparator.  That is so whether she succeeded in her claim or not.  This third issue was not addressed - or at least not in clear terms - in the Tribunal decision which dealt with the other two issues (identified as reserved judgment no.9). It was the subject of a separate and later hearing by way of a pre-hearing review. It is common ground that with respect to this issue we should focus on that later decision and ignore such observations as were made on this point in the earlier decision.  The Tribunal rejected the Council’s contentions on this point and the Council appeals. 

6.	The three matters constitute discrete issues and we will consider them in that way.  

The backdating issue
7.	This issue turns entirely on the construction of the relevant law; the detailed facts are not material. Accordingly we identify only in general terms the different categories of Claimants.

8.	All the Claimants are persons who have had their jobs evaluated under the Green Book scheme and have been identified as having jobs which have been equally rated under that scheme with their chosen comparator.  They fall into four categories, as the Tribunal identified.

9.	First there are White Book Claimants, whose jobs and whose comparators’ jobs were both rated under the White Book job evaluation study prior to 1 April 2004 and are now rated of equal value under the Green Book job evaluation study. They claim that they should be entitled to the pay received by the Green Book comparator in the six years prior to the job evaluation study coming into effect. (The comparator had not been equally rated under the White Book scheme.)

10.	The second category is White Book Claimants who rely on Green Book comparators  who had not had their jobs rated under the White Book job evaluation scheme. 

11.	Third, there are former Purple Book (administrative, technical and clerical) Claimants who are comparing themselves to Green Book comparators. In this category the Claimants and comparators had their jobs rated in comparison with each other under a job evaluation scheme before 1 April 2004.

12.	Fourth, certain miscellaneous Claimants not covered by either the White or Purple Books.

13.	During the course of the hearing, Mr Allen conceded that the backdating principle could not apply to those falling in the first category, namely where both Claimant and comparator had had their jobs valued under the White Book scheme.

The legislation
14.	The relevant legislation is as follows:-
“Equal Pay Act 1970
1 Requirement of equal treatment for men and women in same employment
[(1) 	If the terms of a 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.

(2)		An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman’s contract”), and has the effect that -
(a) 	where the woman is employed on like work with a man in the same  employment – 
(i) 	if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and
(ii)	if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term;

(b)	where the woman is employed on work rated as equivalent with that of a man in the same employment –
(i)	 if (apart from the equality clause) any term of the woman’s contract is determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and
(ii)	if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term;

(c) 	where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment –
(i)	if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and
(ii)	if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term];”  

15.	Section 1(2) sets out the effect of the equality clause.  The provisions relating to compensation are found in s.2(5) read with s.2ZB.  Their effect is that in the standard case (there being exceptions where, for example, the employer has concealed the fact that the pay was unequal) arrears of pay can be claimed up to six years before the day on which the proceedings were instituted. 
	
16.	The argument advanced by the Claimants, in summary form, and was as follows.  They contended the legislation clearly establishes that where there are breaches of the equality clause, there can be back pay for up to six years provided that Claimant and comparator’s jobs remained the same throughout that period.  So if there is a successful tribunal claim that the employee was entitled to like work, or work of equal value, then the backdating will apply.  Exactly the same should occur where the claim is based on work rated as equivalent under a job evaluation scheme.  This is simply another route by which the UK has given effect to the principle of equal pay for equal work in Article 141. A finding that work has been rated as equivalent in a job evaluation scheme is precisely the same as, and indeed conclusive evidence of, a finding that the jobs are of equal value, and the same consequences should follow.
  
17.	The Tribunal considered that the case against backdating was “in differing respects, overwhelming”. They noted the lack of any authority on the point or even any recognition in academic journals that backdating in this context may be possible. They considered that the matter had been determined by the decision of the House of Lords in O’Brien v Sim Chem Ltd [1980] ICR 573. Their Lordships held that once the job evaluation study had been agreed so that it was possible to use it as a basis for comparing jobs, then it could be relied upon even although it had not in fact been implemented.  The Council had contended that this was inconsistent with it taking effect earlier, and the Tribunal agreed.  

18.	The Tribunal noted that linguistically s.1(2)(b) cannot properly be applied to circumstances prior to the job actually being rated as equivalent.  It applies where the job is rated as equivalent; that does not occur until the rating has taken effect.  In this case the pay rates were not determined by the rating of the Claimants and the comparators’ work until the Green Book which took effect on 1 April 2004.  There was no rating taking effect at any stage prior to that date. Before 1 April pay rates for the Claimants and their comparators were determined either under the White Book JES or, where appropriate, the Purple or Red Books. 
19.	The Tribunal considered that the position was different with respect to like work or work of equal value.  Once a woman has established that she is employed on like work or work of equal value then plainly that conclusion would apply to earlier periods provided the jobs of Claimants and comparators had not altered, or not materially so.   

20.	The Tribunal was also influenced by policy considerations. They pointed out that in relation to those White Book Claimants who were the subject of job evaluation studies under the White Book and were comparing themselves with comparators who had also been  assessed under the White Book but as having a higher rating, it would be a recipe for chaos.  Under the White Book job evaluation study they would not be entitled to equal pay; under the Green Book they would. There would be two job evaluation studies in place, both of which were enforceable in respect of the same period, and both conducted on a non-discriminatory basis.

21.	Finally the Tribunal observed that it was difficult to believe that Parliament would have intended employers voluntarily to undertake job evaluation studies, only to find that they were compelled to pay back pay for up to six years prior to the date of their acceptance of the study.

22.	There was an issue relating to certain employees who had signed COT 3 agreements.  The Tribunal held that these Claimants would be barred from claiming in any event with respect to the period before 1 April 2004 even although the cause of action based on the Green Book would not have arisen until after that date.

23.	Mr Allen QC, counsel for the Claimants, contends that these reasons are simply not persuasive. He accepts that if there is evidence that the Claimant or the comparator were not in fact doing the same or substantially similar jobs for the whole of the six year period predating the coming into force of the Green Book job evaluation scheme, then they could not claim equal pay with respect to that period. But he contends that subject to that, the position is no different to that which applies with any like work or equal value claims. There it is plain beyond doubt that subject to the issue arising as to whether the jobs have remained the same throughout the six year period, employees can seek to backdate their claims for six years. 

24.	He contends that it would be contrary to European Union principles to prevent employees from doing the same where they are relying upon job evaluation schemes. After all, that is simply another route whereby the principle of equal pay for equal work enshrined in Article 141 is given effect. He describes the linguistic argument as pure form, and submits that under European law substance must always trump form and there should be no question of denying these Claimants a remedy.

25.	He did, however, make an important concession in the course of the argument.  Initially he had argued that comparisons could be made under the Green Book even although the both Claimant and comparator had been differently rated under the White Book.  

26.	Mr Cavanagh made considerable play of the absurd consequences which would flow from that finding and which had influenced the Tribunal.  It would mean that even though everyone accepted that the White Book was a proper and non discriminatory job evaluation scheme at the time it was in force, it would be overridden by a later job evaluation scheme which now rated the jobs of Claimant and comparator equally. It would be a massive disincentive for employers ever to adopt new schemes because it would mean that they could not rely upon the continuing acceptability of the old scheme if they did even with respect to the period it was supposed to cover.  

27.	Mr Allen recognised the force of the argument that such comparisons could not be right, and that this should constitute an exceptional case where the job evaluation study would not have retrospective effect. But he submitted that in all other circumstances it could.

28.	  He rejected the argument that it would in general be a disincentive for employers entering into such schemes, and suggested that even with the risk of back pay, there were many cogent reasons why employers might prefer to adopt job evaluation schemes, including in particular because it gave a degree of certainty and predictability to their pay systems.

29.	 Furthermore, he contended that it would be wholly futile to compel Claimants to bring equal value claims before tribunals.  They would always be able to establish equal value simply by reference to the fact that the jobs had been rated as equal under the job evaluation scheme.  It would be a wholly unnecessarily expensive and time consuming exercise to compel them to have to litigate the matter.

30.	As to the question of authorities, he submits that none of them is of any real assistance since none of them has ever addressed the precise point in issue.  He accepts that Sim Chem and other cases relied on by the Council do establish that job evaluation ratings do not come into effect until the job evaluation study has been agreed, but submits that that they do not preclude backdating thereafter in just the same way as happens in like work and equal value claims.
31.	Mr Cavanagh QC essentially seeks to uphold the Tribunal’s analysis for the reasons it gave. He submitted that the policy arguments relied upon by the Tribunal were very powerful. It would be extraordinary if Parliament were to encourage employers to enter into job evaluation studies and then for those employers to find that they had thereby undertaken to pay any improvements in pay to any of those so evaluated for a period of six years. The cost would often be astronomic and would discourage any job evaluation study being entered into.

32.	He also submits that Sim Chem is indeed binding and the Tribunal were right to say that it was decisive of this case. Moreover, he submits that the language of the section is clear beyond doubt and cannot sensibly be strained so as to permit the backdating which the Claimants seek. It is simply impossible to say with regard to someone whose job has been rated as equivalent in a job evaluation study as from 1 April 2004 that they were employed on work rated equivalent under that job evaluation study before that date. 

33.	That is not so with regard to equal value and like work claims. Once a job is rated as being of equal value then it can properly be said that it was of equal value at all earlier dates during which the jobs of the applicant and the comparator remained essentially the same. Similarly with regard to like work. But that is not the position with the case of those rated under job evaluation study.

34.	We agree with the Council on this point. The policy arguments are powerful, but not decisive, although the concession made by Mr Allen with respect to comparisons based on successive job evaluation schemes demonstrates that the implications of his argument cannot be wholly ignored. Once the concession is made where both Claimant and comparator are covered by the earlier job evaluation scheme, it is not obvious why it should be so limited.
35.	We do not put any significant weight on the apparent lack of any recognition, either in judicial decisions or academically, that backdating might be possible under these provisions; it may simply demonstrate that at a practical level parties recognise that a job evaluation study may not be completed if there is any fear that such claims will be made.  We have to focus on what the law requires, not what assumptions have hitherto been made about what it requires.  Nor do we consider that the authorities take the matter much further; they have not addressed the particular issue.  Everyone accepts that the scheme does not come into force until accepted or adopted; the issue, however, is whether having come into effect, it can operate retrospectively.

36.	It does seem to us, however, that the language of the provision brooks no argument. It is simply wrong to say that somebody in the period prior to the job evaluation study coming into effect has had their job rated as equivalent under a job evaluation study. Plainly they did not.  Whereas it can be said that someone who is found to have been employed on like work or work of equal value was so employed at earlier periods (on the assumption that the jobs had not changed), it is an impossible construction to say that someone whose job was rated as equivalent with her comparator under a job evaluation scheme from a particular date, was so rated prior to that date.  All that can be said is that if the precisely same job evaluation study had been carried out earlier, they would have been so rated.

37.	The failure to allow backdating for those rated as equal under a job evaluation study does not have the effect, as Mr Allen argued, that this would place the UK in breach of the duty to provide a proper and effective remedy.  The Claimant could still take a case under the equal value provisions.   

38.	Mr Allen submitted that this would be wholly futile.  The crucial premise underlying that submission, however, is that when jobs are related as equivalent under s.1(2)(b) that is the same as jobs being of equal value under s.1(2)(c).  

39.	In our judgment that is incorrect. The decision of the Court of Appeal in Dibro Ltd v Hore [1990] ICR 370 establishes the fact that jobs have been rated as equivalent under a job evaluation scheme will be evidence in an equal value claim that these jobs were indeed of equal value at an earlier stage, assuming the content of those jobs has not changed. Mr Allen relied upon this case but in our view the fact that the job evaluation scheme was not considered potentially decisive of the issue of equal value is against him. 

40.	We do not accept that a rating under a job evaluation scheme is the same as establishing that the two jobs so rated are necessarily of equal value. On the contrary, in our view that misunderstands the true nature of job evaluation schemes.

41.	 In effect there are two elements to a job evaluation study. First, there is the evaluation of the jobs; then there is the fixing of grade boundaries. These may be more or less complex.  It is not uncommon for jobs to be fitted into grades where there may be real distinctions in the value of the jobs.  It may be simpler for an employer to introduce pay scales which embrace a relatively wide class of jobs even although the value of the jobs at the higher end of a particular grade may be significantly higher than those lower down.  That may be a pragmatic and sensible approach enabling the employer to select relatively simplified pay scales, even though it does not closely relate pay to value.  If Mr Allen is right it would encourage employers to adopt very narrow grade bands in order to limit the potential effect of backdating claims.  
42.	As we have said, and as Mr Cavanagh accepts, women whose jobs have been rated as equivalent can bring equal value claims with respect to earlier periods, and the valuation under the job evaluation scheme may be adduced in evidence in the proceedings as Dibro shows.  That is why the Council’s case involves no infringement of Article 141. However, it is entirely appropriate for an employer to be able to challenge the assertion that the jobs were of equal value. The employer must be allowed to contend that whereas he has been willing to treat the two jobs as rated as equivalent as from a particular date for the purposes of his job evaluation scheme, he has not thereby accepted that they either are, or were, of equal value before that date.

43.	We glean some support for this conclusion from the decision of the EAT (Knox J presiding) in Springboard Sunderland Trust v Robson [1982] IRLR 261.  In that case the employee was awarded 410 points in a job evaluation scheme.  Her comparator was awarded 428 points.  The employers fixed grade 4 as being between 410 and 449 points but nonetheless denied her the pay for that grade.  The employers argued that the two jobs had not been rated as equivalent under a job evaluation scheme because of the marked difference in the score. A majority of the industrial tribunal held that she had been so rated notwithstanding the difference in the scores because the formula for converting scores into pay was part of the job evaluation scheme.  

44.	The EAT agreed and rejected the employer’s appeal, finding that the banding system was part of the scheme. Knox J said this (para 17): 
“We have come to the conclusion that it is necessary to have regard to the full results of the job evaluation scheme to see whether or not one can say that the study undertaken under a job evaluation scheme gives an equal value to the two jobs in question, and that includes the allocation of a scale at the foot of the score sheets.”
45.	If the grade boundaries had been differently fixed, the jobs would not necessarily have been treated as equivalent, yet their respective values would have remained unchanged.  Unlike a simple equal value analysis, the boundaries determined by the banding system employed are an important part of the assessment and may be vital in fixing whether the pay for two workers should be the same or not. It follows that this ground of appeal fails.

The COT 3 Claimants
46.	There was a distinct argument advanced relating to the fact that some workers had signed COT 3 agreements.  Mr Allen submitted that they were not bound by them because as a matter of construction they did not apply to the retroactive operation of equal value claims. He says that such claims did not come into existence until the job evaluation study was completed, and therefore these employees could not have given up their rights.

47.	Given our conclusion that there can be no backdating in any event, the issue is of no importance.  We will deal with the point extremely briefly in the event that we are wrong in our primary finding on backdating.  Suffice it to say that we have no doubt that the Tribunal was right to conclude that those who had signed COT 3 agreements would be precluded from making these claims. 

48.	First, we think that wording of the relevant compromise agreements is plain.  They covered “all claims…in connection with the terms of their contracts of employment.”  We think that is unambiguous.  In any event, we accept Mr Cavanagh’s submission that the issue has already been determined by an earlier decision of this Tribunal (HH Judge McMullen QC presiding) in Clarke v Redcar and Cleveland Borough Council [2006] ICR 897 esp. paras 51- 55.  The EAT noted that the compromises covered equal pay claims up to 1 April 2004.  This is such a claim even if it did not arise until after that date. Hence it cannot be advanced. 

The Statutory Grievance Procedure
49.	The context of this is as follows. The Employment Act 2002 established an obligation on employers and employees to implement statutory dismissal or grievance procedures. Employees who fail to raise a grievance will not be entitled to pursue a claim before an employment tribunal save in certain exceptional cases. 

50.	Similarly, once a grievance is raised there are certain steps which an employer is obliged to take. If he fails to do so then by s.31(3) the Tribunal may uplift compensation by between 10 and 50 per cent. However, s.31(4) provides that no increase may be made if there are:
“exceptional circumstances which would make an…increase of that percentage unjust or inequitable, in which case the tribunal may make no..increase.. or an increase of such lesser percentage as it considers just and equitable in all the circumstances.” 

51.	We first set out the relevant legislation. It is common ground that the grievance procedure applicable to these claims is what is termed under the Act the “standard grievance procedure”.  There are three steps involved in that procedure as set out in paras 6-8 of  Schedule 2 to the Act. They are as follows: 

“Step 1: statement of grievance
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7. (1) The employer must invite the employee to attend a meeting to discuss the grievance.
    (2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to the information.
(3)  The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must notify the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.”

52.	The third step involves a right of appeal and is immaterial to this decision.

53.	Regulations were made setting out further provisions relating to the resolution of disputes and grievances in the Employment Act 2002 (Dispute Resolution) Regulations 2004.  

54.	The relevant regulations material to this case are regs 10 and 11 which are as follows:

“10 Where either of the grievance procedures is the applicable statutory procedure but –
(a)	at the time the employee raises his grievance there is a procedure in operation, under a collective agreement made between two or more employers or an employers’ association and one or more independent trade unions, that provides for employees of the employer to raise grievances about the behaviour of the employer and have them considered, and
(b) the employee is entitled to raise his grievance under that procedure and does so, the parties shall be treated as having complied with the applicable statutory procedure.

11 General circumstances in which the statutory procedures do not apply or are treated as being complied with—
(1)	Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 2), the procedure does not apply.
(2) Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.
(3) The circumstances referred to in paragraphs (1) and (2) are that –
(a)	 the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;
(b) 	the party has been subjected to harassment and has reasonable rounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or
(c)	 it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.”
	
55.	In this case the employees did raise grievances. It is important to bear in mind the context in which this was done.  They did not do this as individuals, but through letters from the lawyer representing them, Mr Cross, which indicated that they would only deal with the matters through Mr Cross. Each of the employees represented by Mr Cross has entered into a conditional fee agreement under which Mr Cross will get a certain percentage of any back pay recovered. In return they do not have to make any payment, although they will have to do so if they seek to negotiate a settlement independently of him, or bring his services to an end.  We were referred to the relevant terms of the agreement, which were as follows: 
"If [a signatory ends] the agreement before the case is won or lost, you are liable to pay our costs incurred at the rate of £160 per hour (the hourly rate) with letters, emails and telephone calls charged at £16 each.." (all plus VAT).

56.	There is a similar liability to costs if the solicitors "end the agreement if you do not keep your commitments."  These provisions were later amended providing for the payment of 29.375% of the compensation with a fixed fee of £500 for every 6 months spent acting for the Claimant.  We understand that these terms apply to all these Claimants.

57.	The litigation concerning equal pay in this Council had gone on for some eighteen months prior to these individuals making their claims. Moreover, there had been attempts to mediate the dispute between the Council and Mr Cross under the auspices of Mr Bean QC, now Mr Justice Bean, in May 2004, but that proved to be unsuccessful.  We have no doubt whatsoever that the effect of these clauses was that there could not conceivably be any settlement save though Mr Cross.  The lay members were surprised and concerned about this.  

58.	An agreement of this nature does not sit happily with the statutory provisions designed to secure settlement; indeed, it undermines them.  The lay members accept Mr Cavanagh’s submission that in effect this amounted to a potentially significant financial penalty on the Claimants which created an equally-significant incentive not to allow any mediated settlement. (It has not, however, been suggested that the terms to which we have referred were unethical or improper, and we say no more about them.)

 
60.	Each grievance letter was couched in precisely the same terms. Each was under a covering letter from Mr Cross headed “statutory grievance”.  Sometimes two or three grievances were lodged in respect of the same person; some grievances were made which could not possibly have existed, such as claims of unequal pay under the White Book when the employee had not been rated under that book; and indeed in one case the original respondent to the grievance had been an NHS Trust (in respect of which other clients of Mr Cross were making claims) and the name had been struck out and the Council’s name substituted without any attempt to alter the substance of the grievance.  
61.	The Council did invite three employees to attend meetings but thereafter made a conscious decision not to hold meetings with any of Mr Cross’ clients.  They responded to the grievance letters by informing the employees concerned that they had no right under the grievance procedure to have a solicitor present as their representative; and that no reasoned response could be given to the grievance until the outcome of the litigation, which was under way, was known.  

62.	The Claimants were told that the grievance would be put on hold pending resolution of those issues, but that it would not prejudice their position in any litigation since the Council was acknowledging that the grievance had been lodged.  It is this failure to hold a meeting which is said by the employees to be in breach of para 7 (1) of Schedule 2 to the 2002 Act.  The employees claimed that accordingly there should be an uplift in compensation.

63.	The Council submitted that there were two distinct reasons why the failure to hold individual grievance meetings did not constitute a breach of the obligation which would otherwise have arisen under para 7(1). First, it was contended that regulation 10 applied and therefore both parties, including the employer, should be treated as having complied with the relevant statutory procedures once the grievance was lodged.  Second, it was argued that in any event it was not practicable for the Council to have complied with the procedure within the meaning of regulation 11(3).

64.	The Tribunal upheld the first argument but rejected the second. In the result, therefore, they held that there was no breach of the obligation placed on the employer by para 7(1).  However, they went on to say that had they found that the Council was in breach, they would have increased the compensation. They accepted that there were exceptional circumstances within the meaning of s.31(4) justifying a reduction below 10% but considered that it should at least be 5% given that the refusal to hold the meetings was deliberate and considered.  Mr Allen challenges the finding that the Council was not in breach of duty, and Mr Cavanagh contends that even if they were, the Tribunal erred in law in stating that they would not have awarded any uplift in the unusual circumstances of this case.

Were the Council in breach?
65.	 The first argument, relying on regulation 10, proceeded as follows. Under regulation 10, where there is a procedure “under a collective agreement” and the employee is entitled to raise his grievance under that procedure and does so, then the obligations which would otherwise require an employer to hold meetings do not apply.

66.	In this case it was submitted that the Council’s own grievance procedure was one which fell under the relevant collective agreement. This was on the basis that clause 16 of the Implementation Agreement in 1997 headed ‘Grievance Procedures’, said this:
“The employing authority should ensure that all employees are aware of the person to whom they should apply in the event of their having a grievance and of the procedure to be followed in that instance.”

67.	The Implementation Agreement is national and encompasses many councils and trade unions. Clause 16 is therefore an example of the collective parties nationally imposing an obligation on councils locally to adopt a procedure agreement, but the terms of it are left very much to them.

68.	Mr Cavanagh submitted that the grievance procedure in this case was one made “under a collective agreement” as defined.  It was made “under the agreement” if it was made pursuant to it, as this one was.

69.	Mr Allen submitted that the phrase has a different meaning. It does not encompass grievances made under an agreement made pursuant to the national agreement. Rather, it is envisaging a situation where the relevant collective agreement made between the collective parties of unions and employers itself sets out a grievance procedure which can be invoked by the employees externally of the particular employer. 

70.	The rationale for the exception in regulation 10 is that once an employee lodges a grievance through that external procedure it will be dealt with in accordance with that procedure.  It would undermine it if the individual employer were to be obliged to deal with that grievance independently of, and perhaps in addition to, the external procedure. It is not enough that the grievance procedure is framed by an individual employer pursuant to a generalised obligation to adopt grievances meeting certain standards, as in this case.

71.	The Tribunal agreed with the Mr Cavanagh’s submissions.  The employees appeal against that finding.  We uphold this aspect of the appeal.  In our judgment the Tribunal misconstrued the meaning of regulation 10. 

72.	We agree with Mr Allen’s submissions.  He essentially repeated before us the arguments that were made to the employment tribunal. We do not accept that a procedure established “under an agreement” is the same as one established “pursuant to an agreement.”  In our judgment the former envisages that the external collective parties have themselves formulated a procedure agreement not merely that they have encouraged or directed employers individually to do so.  It seems to us that it would severely undermine the proper operation of these procedures if Mr Cavanagh were right. 

73.	The purpose behind regulation 10, in our view, is to allow any external procedures to operate once they have been invoked and to relieve the employer of any obligation to take steps with respect to a grievance which has been processed in that way. It might undermine the external grievance process simultaneously to have the matter handled internally by the particular employer.  Here the party which had to deal with this grievance under the procedure put in place was the employer himself; he was the only person who could deal with them. It would be very curious indeed if he were to be relieved of the obligation to do anything about the grievance once it had been lodged merely because the agreement had been adopted following promptings from the national bargainers.

74.	Mr Cavanagh correctly says that regulation 9 is a case where a grievance may be raised by an employee, and yet there is no obligation on the employer to take matters further even although no external body is involved. That is the case where a union official raises a grievance on behalf of two or more individuals. However, it was no doubt anticipated that the union official would be pressing management for a resolution of the problem, and again the use of the individual grievance procedure might undermine any attempt to use any collectively agreed procedures negotiated internally between management and unions. One can readily see why an exception might be made for that case. 

75.	That is not the same as the situation here where, if Mr Cavanagh is right, the individual can raise a grievance and there will be no obligation for anyone to do anything about it.  We do not think that regulation 10 could conceivably have been intended to deny these employees the right to have grievances redressed merely because the collective bargaining machinery nationally had required grievance procedures to be adopted locally. Nor do we think that it is the appropriate construction of the language of regulation 10.  Accordingly on interrelated grounds both of policy and construction we think the Tribunal was in error on this point. 

76.	 Mr Cavanagh’s alternative argument is that it was not practical for the Council to deal with this grievance under regulation 11 and that the Tribunal were wrong to have held otherwise. Essentially as aspects of this argument, he contends that the Council could not be said to have had a reasonable opportunity to formulate a response until after the litigation, and therefore were not in breach because of para 7(2)(b), and that for essentially the same reason  there was no failure to hold a meeting within  a reasonable time within the meaning of reg 11(3)(c).

77.	In support of these arguments he rehearses various matters which were advanced without success before the Tribunal, namely that there were few managers who could properly deal with these issues; that the sheer number of grievances made it impossible to deal with them speedily; the employees were spread around many parts of the borough and often only worked for a short number of hours per week, thus making meetings very difficult; and that, in any event, the whole exercise would have been pointless.  

78.	On this last point he asserted that it was fanciful to believe that any of these grievances could be settled on an individual basis, particularly given the terms of the contingency fee arrangement and also given that attempts by mediation to resolve the whole dispute had failed. That was prior to these grievances being lodged.
79.	Mr Allen submits that it was plainly practicable to hold these meetings. “Practicable” meant no more than “feasible” to do so; it was not even qualified by the epithet “reasonably”.  There is no doubt, he submits, that it was feasible in this case, as the Tribunal found.  Indeed, the Tribunal noted that grievance meetings had apparently been held in South Lanarkshire.

80.	We accept that it was plainly feasible to hold a meeting and, independently of the argument on pointlessness, we think that the Tribunal was entitled to conclude that it would have been practicable to have held these meetings. They were entitled to conclude that the practical difficulties of convening meetings did not of themselves make it impracticable to do so.

81.	We do see considerable force in the argument that ‘practicable’ in this context does not simply mean “feasible” to hold a meeting. The purpose of this legislation is to ensure that there is every effort made to seek to settle disputes before they go before the Tribunal. There was in truth no possibility whatsoever that grievance meetings held with individuals could have resolved anything.  Mr Cross would not have been there since the employers were not obliged to allow him to be there under the procedure and for understandable reasons did not want him to be. The individuals could not resolve matters without risking potential significant liabilities under the contingent fee agreements; and in any event the issues are too complex for them properly to understand the implications of any decision they might take.  The whole exercise would have been of an entirely hollow and formalistic kind. Any solution had to be reached with Mr Cross.

82.	We have doubts as to whether Parliament, when enacting these provisions to advance the possibility of dispute resolution, would have expected employers to have to waste many hours of time and effort on a wholly irrelevant exercise that could have no bearing on the issues in dispute at all. Whilst ‘practicable’ can often be equated with “feasible”, as for example where tribunal claims have to be lodged within three months unless it was not practicable to do so, in other contexts it has a broader meaning.   For example, where reinstatement or reengagement is under consideration it will be necessary for the tribunal to consider whether such an order is practicable (s.116(1)(b) of the Employment Rights Act 1996). 

83.	The courts have held that this does not simply mean feasible but that the tribunals must look at the practical realities involved, having regard to the industrial relations’ realities: see Port of London Authorities v Payne [1994] IRLR 9. It will not be practicable if, for example, the relationship between the parties has been wholly undermined by the dispute in which they are involved even although reinstatement would be perfectly possible. 

84.	There is much to be said for the submission by Mr Cavanagh that a similar approach should be adopted here.  On reflection, however, we have come to the view that construing regulation 11(3) as a whole, and in particular given the other two exceptional circumstances covered by that provision, namely difficulties faced by harassment or intimidation, the narrower formulation suggested by Mr Allen is more likely to reflect the intention of the draftsman.  Accordingly, the finding by the Tribunal that the Council could not escape liability on this ground was a conclusion open to them on the evidence.  

Should compensation be enhanced?
85.	That leaves the question whether compensation should be enhanced as a consequence of any failure by the employer. The Tribunal recognised that there was force in the pointlessness argument. They considered that on that basis they would reduce the minimum enhancement of 10% to only 5%. They recognised that to give 10% would be to present the Claimants with an unjustified windfall, but they felt that a blatant failure to comply with the regulations had to be marked by some additional compensation.

86.	We recognise that this Tribunal will interfere with any such conclusion only in very rare circumstances, but we are unanimously of the view that this is such a case.  The pointlessness argument is in our view overwhelming for the reasons we have already outlined.  Given in particular the terms of the Contingency Fee agreements, it is wholly fanciful to believe that any agreement could be reached with anyone independently of Mr Cross, and attempts to resolve matters with him under the auspices of David Bean QC had failed.  

87.	 Indeed, it is pertinent to note what the Tribunal itself thought could be achieved by such a meeting. They said this: 
“All that was required was that the employees be given the opportunity to explain their cases at a meeting with the manager.  All that was required of the respondent was that the manager should state that the respondent had decided not to enter into any discussions with a view to avoiding Tribunal claims with individuals.  No special knowledge of the merits or otherwise of the claimants’ claims was required.  The claimants clearly had no knowledge.”

88.	In our view this lays bare the futility of any such meeting.  We consider that, to use the language of s.31(4), it would be manifestly unjust and inequitable to increase  by any amount at all any compensation owed to these women because of a failure to go through the charade of individual interviews. We strongly suspect in fact that most women would not even have turned up. If they had done so, they would have had precious little understanding of their claims, as the Tribunal recognised in terms.
89.	As Mr Cavanagh pointed out, in South Lanarkshire which the Tribunal relied upon as an example of a Council which did hold meetings, the relevant correspondence before the Tribunal showed that in fact the employee was unable to elaborate upon her grievance at the meeting.  The fact that another Council called a meeting for form’s sake does not justify the conclusion that every Council should do the same.

90.	The Council in our view adopted a sensible and practical approach to the difficulties with which they were faced. We understand why Mr Cross issued the grievances in the way he did. He wished to protect himself in case the Council had sought at a later stage to allege that the Tribunal had no jurisdiction to hear the claims because of the failure to raise grievances. But the formulaic way in which they were raised, without any tailoring to individual circumstances, showed that these were no more than documents designed to comply with the formal requirements of the law. 

91.	As Mr Cavanagh accurately put it, they were simply part of the litigation process; they were not genuinely intended to be part of an alternative method of resolving the dispute, and there was never the remotest chance that they could have achieved that objective.

92.	Mr Allen says that we should only interfere with the Tribunal’s conclusion on this matter if it is perverse.  If it is necessary to do so, we do indeed unanimously consider that it was, even recognising the high hurdle required to establish perversity in cases such as Yeboah v Crofton [2002] IRLR 634. But in fact we think that the Tribunal wrongly directed itself as to the meaning of just and equitable, and wrongly considered that because the failure to hold meetings was a deliberate policy, it could not be just to relieve the Council of the obligation to make any uplift.  
93.	The issue was whether that policy was justified having regard to the purposes of the legislation, even if there was a technical breach of the law. Plainly the existence of s.31(4) envisages that there may be such cases. We have no doubt that the Council’s approach was justified here.  Had these women been represented by a trade union rather than a private solicitor, then the case would have fallen under reg.9 and there would have been no breach at all for failure to call individual meetings.  The union would have been expected to deal with the issue.  Similarly here; the only real possibility of any resolution of any of these cases was if Mr Cross and the Council could come to some agreement.

Were the procedures applicable to all claims?
94.	There is one further submission made by Mr Cavanagh as to why the regulations were inapplicable at least to some of these claims. He contends that the transitional provisions contained within regulation 18(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 meant that the statutory procedures did not apply to claims for equal pay with respect to periods of time ending before the regulations came into force. 

95.	This was a matter which the Tribunal did not expressly address (given the myriad of issues they have had to determine, it was a forgivable oversight). Regulation 18(b) is as follows:
	“These regulations shall apply - … 
(b) In relation to grievances where the action about which the employee complains occurs or continues after these regulations come into force, but shall not apply in relation to a grievance where the action continues after these regulations came into force if the employee has raised a  grievance about the action with the employer before they came into force.”

96.	The various complaints in this case relate to claims for equal pay in respect of different periods of time. As we have indicated, some of them relate to the right to equal pay in the period leading up to 1 April 2004. The rival arguments fall within a very short compass. 

97.	Mr Cavanagh submits that where the complaint relates to a breach of the equality clause which breach came to an end prior to the date when the regulations came into force, namely on 1 October 2004, then the relevant action of the employer, namely the failure to pay equal pay, did not continue after the regulations came into force.  Therefore there was no obligation either for the employee to lodge any grievance with respect to any such claim nor for the employer to deal with one if it were lodged.

98.	Mr Allen submits that this is too narrow an interpretation of the “action” of the employer. He submits that the concept should be interpreted broadly and not narrowly or artificially. In substance here there was one complaint of unequal pay which has been continuing both before and after the regulations came into force.

99.	We prefer the argument of Mr Cavanagh. The question is not whether there has been a continuing grievance; it is whether particular action complained of was completed before the act came into force. In our judgment the various complaints are distinct complaints of different ways in which the employer allegedly failed to comply with his obligations under the Equal Pay Act. As we have said, this does not by any means deal with all the complaints made by the Claimants in this case but it follows that we do not think that there could, in any event, be any uplift with respect to claims for equal pay in respect of periods which came to an end prior to the regulations coming into force.
Res judicata.
100.	This part of the appeal is directed to the finding of the Tribunal at a separate hearing held in October 2006 in which it rejected a claim by the Council that all Claimants who had had their legal actions determined either by a settlement or by a decision of the Tribunal were prevented from pursuing any other equal pay claim.

101.	 Many of the Claimants in this case have in their original claims identified a number of potential comparators with whom they claim equal pay. Various examples were given as to the potential effect of this issue.  Some Claimants who had claimed that they were not being paid the same as others rated as equivalent under the White Book scheme had their claims conceded by the Council and judgment was awarded in their favour.  Other White Book Claimants have successfully pursued similar work rated as equivalent claims to judgment.   

102.	In each case many of these Claimants are also seeking to establish retrospective claims against Green Book comparators - an argument which we have in fact rejected above - and also comparisons with those on what are termed Red Book terms, namely craftsmen.  In some cases there is more than one comparison within a particular category of worker.  

103.	The Council contends that all these Claimants who have pursued a case to judgment, whether they have won or lost, are now bound by that decision and cannot seek to reopen it by citing different comparators. The Tribunal rejected the Council’s argument essentially for the reasons advanced before us by Mr Allen.  Accordingly we will consider those arguments first.

104.	  It is pertinent to note as a preliminary point, however, that these various claims were all made in the same claim form and therefore the principle in Henderson v Henderson is not in play here, as both counsel agree. The principle behind that doctrine is that a litigant should run all related points in one action; it is an abuse of process to seek to re-litigate a different but related cause of action when it should sensibly have been taken in the earlier proceedings.

105.	The legal rule on which Mr Cavanagh is relying is res judicata. In the context in which it has been advanced in this case at least, it is essentially the same as a cause of action estoppel and the doctrine of merger, which he also invokes.  Res judicata expresses the legal rule that an action should only be tried once otherwise it is unnecessarily vexatious to the individual litigant and it is an improper use of the court’s time. 

106.	It is sometimes explained on the basis that the cause of action merges into the judgment and is thereby lost. In the introduction to Spencer Bower Turner & Handley on Res 
Judicata (3rd edition; 1996) they summarise the position as follows:
“Where the action succeeds the right or cause of action set up is  extinguished, merging in the judgment. Transit in rem judicatam. No further claim may be made upon the same cause of action in subsequent proceedings between the parties or their privies.
Every res judicata operates as an estoppel…. A decision in favour of the plaintiff of such an exalted nature that it extinguishes the original cause of action and bars the successful party from afterwards attempting to resuscitate what has been extinguished. In modern terms it is against public policy, and oppressive to the individual, to re-litigate disputes which have been litigated to a conclusion.”

107.	The link between cause of action estoppel and res judicata extends beyond the successful party, however, and applies to those whose claims fail also.  This is clear from the following passage from the judgment of Lord Guest Carl Zeiss Stifung v Rayner & Keeler (No 2) [1967] 1 AC 853, 933-934:

“it [is] convenient to describe res judicata in its true and original form as “cause of action estoppel.”

He added:

“The doctrine of estoppel per rem judicatam is reflected in two Latin maxims, (1) interest rei publicae ut sit finis litium, [it is in the public good that there be an end to litigation] and (2) nemo debet bis vexari pro una et eadem causa [nobody should be vexed twice with the same cause of action]. The former is public policy and the latter is private justice. The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p.3).”

108.	We need not explore the intricate features of this jurisprudence because the basic principles are not in dispute.  It is common ground that the issue which we have to determine in this case is what constitutes a cause of action for the purpose of this rule.

109.	Mr Allen contends that the concept of cause of action is clear and uncomplicated. He cites the well known passage of Diplock LJ in Letang v Cooper [1965] 1 QB 232 at 242:
“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

110.	   An alternative way of putting it was accepted without demur by Lord Goff of Chieveley in Republic of India v India Steamship Company, The Indian Endurance [1993] 1 All ER 998 at 1005h:
“A cause of action consists of the minimum facts which a plaintiff is required in law to plead and (if traversed) prove in order to obtain the relief which he claims.”

111.	   Mr Allen submits that a pleading can, and often will, identify more than one cause of action. For example there may be various ways in which a contract may have been broken, or there may be allegations involving a breach of statutory duty and a breach of contract in the same claim. They will be separate causes of action. 

112.	  The crucial feature of the res judicata action, however imprecisely it is described, is that there must be the same cause of action in the later proceedings as in the earlier. The short answer to the Council’s contention, submits Mr Allen, is that the facts in relation to each of the alleged breaches of the equality laws is different. So, for example, in the White Book job rated as equivalent claim, the facts which need to be established are that the Claimant is employed on a work which has been rated as equivalent under that scheme and is being paid less where there is no genuine material difference causally explaining the difference in pay. 

113.	   In relation to the Green Book retrospective claim, it is an entirely different exercise and depends on a different comparison.

114.	   Mr Allen submits that it makes no difference that the same statutory provision is in play in each of these claims. An employer may infringe each of his statutory duties of care in different ways on different occasions but each may be a separate cause of action. 

115.	He further submits that if the position were as Mr Cavanagh suggests, then that would involve a plain breach of Article 141 because there would be situations where those employed on equal work were being denied equal pay. Take the case of a woman who sought to compare herself on an equal value claim with a particular comparator and the court concluded that the jobs were not of equal value. She would fail in that claim. Yet she may be paid less than a man employed on like work, or some other man whose job would be rated of equal value which she could only establish if she were able to pursue her case. 

116.	  Furthermore, Mr Allen says that it would be a complete lottery if Mr Cavanagh were right; depending upon which claim was pursued first – and that may depend upon pragmatic considerations such as the availability of witnesses – she may or may not obtain equality. The short answer to the Council’s case, therefore, is that each claim is a separate cause of action; a different comparator is identified and the evidence necessary to prove the case is not the same. A different evidential and factual analysis has to be adopted by the Tribunal; and therefore the causes of action are quite distinct.

117.	   Mr Cavanagh, in an attractive submission, submitted that the cause of action was in fact the same even where different comparators were identified. However the equal pay claims were put, the Claimants were alleging that the same party was in breach of the same pay term-namely the equality clause- in relation to the same period of time. Whenever a claim is made under the equality clause, the woman is seeking to establish that there has been a breach of her contract- since the equality clause takes effect as a term of the contract- and she is therefore seeking to establish her contractual right. 

118.	   Having established that contractual right to a particular payment, she cannot seek to establish a different contractual right to a different payment. She has to decide which claim she is going to pursue and having taken it to judgment; that decision must stand as the determination of her rights under the equality clause, irrespective of what other potential claims there may be. Once she has established a right to £x she cannot seek to go back to court and say that she now wishes to claim that she is entitled to £y.  Indeed, it would be absurd, Mr Cavanagh suggests, if an employer could be at one and the same time subject to a term which obliges him to pay both £x and £y to the employee, even if one could be set off against the other.

119.	   Mr Cavanagh submits that the real issue here is whether some variation in facts enables a litigant to assert that as a consequence there is a second, distinct cause of action.  He contends not and relies upon the case of Conquer v Boot [1928] KB 336. In that case the defendant contracted to build a bungalow for the plaintiff. It was to be built in a good and workmanlike manner. The plaintiff brought an action in the County Court alleging that there had been a breach of contract because it had not been completed in a good and workmanlike manner and he set forth various particulars of the alleged failure. Later he brought another action with respect to the same contract but claiming a larger sum. In the latter action he alleged also that there was an obligation to build with proper materials and the particulars of breach were different from those relied upon in the first action.

120.	   The Court of Appeal held that the cause of action was the same in both cases, namely the breach of contract, and that the matter was res judicata. Sankey LJ said this:
“With regard to the plea of res judicata a great number of cases have been cited to us, the most informative of which is that of Brunsden v Humphrey. 14 Q.B.D. 141. In that case there was one wrongful act – namely, negligent driving – but there were two distinct causes of action – namely, the injury to the cab and the injury to the man’s person – and Bowen LJ says this [p.147]: “It is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all.” Pausing there for a moment, in my view it would have been impossible for the plaintiff in that case to bring several actions in respect of the damage to his cab. He could not have sued one day for a broken wheel and next month for a broken shaft and later for a broken window and so forth; and so too, with regard to the personal injuries, it would have been impossible for him to sue one day for the loss of a leg and another day for the loss of another leg and later to sue because he lost his fingers or had injured his head. One knows that in personal injury cases damages are assessed once and for all.”

121.	Mr Cavanagh draws an analogy with those observations, saying that similarly a Claimant cannot seek to recover different sums by reference to different comparators. Later,  Sankey LJ said this:
“I think that the present case falls within the rule laid down by Bowen LJ in Brunsden v Humphrey 14 Q.B.D 147: “It is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all.” The cause of action here is: (1.) the contract to complete in a good and workmanlike manner a bungalow, and (2.) the breach of it. I do not think that every breach of it – every particular brick or particular room that is faulty – gives rise to a separate cause of action. I am of opinion that the cause of action here was the contract and the breach of it, both of which had been assigned in the original action. I do not think it is possible to say that every one of these breaches is a separate cause of action. In that I am confirmed by the notes in Bullen and Leake’s Precedents of Pleadings, 3rd ed. (1868), p. 625, where the law is correctly stated as follows: “Where the plaintiff has recovered judgment in a previous action for part only of the amount claimed, the judgment affords a good defence to a subsequent action for the same claim.” Numerous cases are there cited which show it is quite impossible to treat every breach of contract of this sort as giving rise to a separate cause of action. The cases are all discussed in Mr Spencer Bower’s recent book on Res Judicata, pp. 192, 193, and he quotes the case of Brunsden v Humphrey … which lays down that there may be two actions in respect of the same facts where the facts give rise to two distinct causes of action. In my view the plaintiff in this case having recovered on the contract for the breach he alleged, cannot recover in another action upon precisely the same particulars of claim, but adding further particulars of damage only. Having recovered judgment in the one action he is debarred from bringing a second action.”

122.	There are also helpful observations in the judgment of Talbot J in the same case. He said this (page 344):
“The contract is an entire contract. No claim for payment could have been made by the defendant unless and until he had finished the bungalow. There is one contract and one promise to be performed at one time, although no doubt the defendant may have failed to perform it in one or in many respects. There may of course be many promises in one contract, the breach of each of which is a separate cause of action. An example is Bristowe v. Fairclough 1 Man & G 143, quoted by Mr. Eve in his excellent argument. There the contract contained two separate promises by the defendant to be performed at different times and in different events; and it was accordingly decided that judgment in an action for breach of one was no bar to an action for breach of the other. The period of limitation would be different for the two. Here there is but one promise, to complete the bungalow; and the question whether or not it has been performed is to be decided by the state in which the bungalow was when it was handed over by the defendant to the plaintiff as complete. From that moment the Statute of Limitations began to run as to the whole. The plaintiff could not alter the fact that he was recovering damages for the breach of this single promise by failing to specify in his action all the particulars of the breach and all the damages to which he was entitled. The test whether a previous action is a bar is not whether the damages sought to be recovered are different, but whether the cause of action is the same: per Boville C.J., Gibbs v. Cruikshank. (1873) L.R. 8 C.P 454, 460.  If this were not so the rule would be nullified. The plaintiff relied on the judgment of Brett M.R., in Brunsden v. Humphrey [[14 Q.B.D. 146] which mentions as a test for deciding whether two causes of action are the same, whether the same evidence will support both; and he urged that in his first action no evidence would have been admitted of breaches of contract by the defendant other than those specified in the particulars. But the question is not whether, as the action was actually brought, the plaintiff could or could not go into certain matters, but whether he could if he had given the proper particulars have proved the whole of what he claims in the second action under the cause of action for which he sued in the first: see Death v. Harrison (1870) L.R. 6 Ex. 15, 19,  especially the judgment of Cleasby B., and Newington v. Levy (1870) L.R. 6 C.P. 180.

123.	Conquer v Boot was considered by Lord Goff in The Indian Endurance, who summarised the principle enunciated in that case as follows (page 1006):
“It is necessary to identify the relevant breach of contract; and if it transpires that the cause of action in the first action is a breach of contract which is the same breach of contract which constitutes the cause of action in the second, then the principle of res judicata applies, and the plaintiff cannot escape from the conclusion by pleading in the second action particulars of damage which were not pleaded in the first.”

Conclusion.
124.	We are divided on this issue. Like the Tribunal, the majority (the President and Mrs McArthur) prefer the arguments of Mr Allen on this point.  It is not, in our judgment, a situation where the same breach of contract is pleaded in each case. The principle of res judicata is a procedural one; it is really a rule of evidence as the quote from the speech of Lord Guest shows.  It is also rooted in public policy and in particular that it would be oppressive to allow the further action to be taken.  If one looks at the case from that broad standpoint, it would in our view be unjust to impose what would effectively be a lottery on Claimants, forcing them to take a chance on which case to advance.  Do they choose the most favourable potential claim even if there is the greatest risk of losing, or the least favourable because it perhaps has the greatest chance of winning?  We do not think that the purpose of the doctrine is to place Claimants in such an invidious position.  

125.	In our view these separate claims are distinct causes of action.  It is not accurate to say that each breach of the equality clause is the same breach of contract.  It is a breach of the same term but committed in different ways.  Conquer v Boot shows that you cannot seek to dissect what is in substance a single promise into a series of separate obligations and treat them all distinctly.  The analysis in fact is closely linked to the principle in Henderson v Henderson. All aspects of the single promise must be considered together.  It would be an abuse to run the litigation in any other way. But the promise to pay the same as man A is not the same as the promise to pay the same as man B.    The second claim is not simply a reframing of the original cause of action, as in Conquer v Boot.

126.	Adopting the approach of Talbot J in the Conquer case, in our view the evidence in the two cases would be quite different, the breach may occur at a different time - for example, man B may be employed much later than man A- and the limitation periods would not necessarily then be the same.  This is one contractual term, but it potentially contains a number of contractual promises, and the employer is obliged to honour each. 

127.	On this point, Mr Smith dissents.  He is persuaded by the argument of Mr Cavanagh.  He accepts that the issue is what constitutes a “cause of action” but does not accept that any factual difference in two situations, however small, necessarily constitutes a separate cause of action.  In particular, he does not accept that an employer can be under a legal obligation to pay two different rates of pay as the legally established “equal pay” rate.  The employer must pay the legally correct rate; that must be a single rate, and once that is established in the course of litigation, there is no room for further modification.   There might be different breaches, but they were all be breaches of the same contractual term. 

128.	 In Conquer v Boot Lord Sankey observed that not every separately identifiable breach of contract constitutes a separate cause of action, and inferred equality clause.  The fact that breaches are committed in different ways may be less important than the fact that they relate to the same contract.  The central issue is not whether to pay a Claimant female the same amount as man A or man B.  The employer must pay the legally correct rate based on the inferred equality clause, and the ET must establish definitively at any point in time what that single rate must be.  

129.	There can then be no room for further modification, at least with respect to a particular period of time, as the extract reproduced above indicates.  Mr Smith considers that that principle holds good here.

130.	This legal analysis is also bolstered by policy considerations.  The possibility of a multitude of claims being advanced by a host of complainants, each making comparison with a wide range of comparators, makes the task of the tribunals intolerable.  It could not have been what Parliament intended.

Election of remedies.
131.	Mr Cavanagh argued in the alternative that the Claimants were seeking inconsistent remedies, namely different sums of money in relation to the same period of service with respect to different comparators. He submitted that the doctrine of election precludes this. The Claimants have a White Book rated as equivalent claim, a Green Book retroactivity rated as equivalent claim and a Red Book equal value claim, and they have to choose between them. They cannot simultaneously seek different sums by way of the pay due to them under the equality clause from different comparators. He accepts that it is perfectly acceptable to plead alternative claims but there comes a point when they have to elect for their remedy and at that stage, having elected, they are barred from seeking an inconsistent remedy.

132.	In substance it seems to us that this is the same as the argument we have rejected.  We do not accept this submission either, essentially for two reasons. First, this doctrine is about election of remedies, and it seems to us that in truth Mr Cavanagh is still seeking to require the Claimants to elect between rights and not between remedies. They are being required to choose which of their comparators they will pursue to judgment. The principle of election is classically applicable in cases where, for example, a Claimant in relation to a particular defendant has a number of remedies available which may be inconsistent. 

133.	The classic example given by Lord Nichols in Tang Mang Sit v Capacious Investments [1996] AC 514, 522 is where a plaintiff has potentially a remedy for an account of profits for breach of fiduciary obligations and also for damages by reason of the same breach. One measures the wrongdoer’s gain, the other the Claimant’s loss.  At some stage an election will need to be made.  Plainly, that is not this case.
134.	The second reason is that in any event the principle of election only arises when the party is able to make an informed choice. In Island Records Ltd v Tring International plc [1996] 1 WLR 1256 at 1258H Lightman J said this:
“A party should in general not be required to elect or be found to have elected between remedies unless and until he is able to make an informed choice. A right of election, if it is to be meaningful and not a mere gamble, must embrace the right to readily available information as to his likely entitlement in case of both the alternative remedies.”

135.	In our view, if Mr Cavanagh were right, it would be requiring Claimants to take precisely the gamble which the court there considered unacceptable.

136.	We should add this, however. Each of us fully appreciates why the Council in this case feels oppressed by the weight of the claims being advanced against it. There is a pragmatic attraction in seeking to compel the Claimant to exercise a choice but in our view it would work obvious injustice and is not to be countenanced. However, tribunals must bear in mind that they do have rules which will enable them to ensure that cases are pursued properly and in a sensible order.  

137.	If comparators are being identified and claims pursued which have no realistic prospect of success, or if they are so similar to other claims being advanced that they ought not in justice to be determined as separate claims, then tribunals can where appropriate award costs against the party who is conducting litigation in an unfair, wasteful and unreasonable way. It has not been suggested in this appeal that that is what has occurred here.  We merely wish to draw attention to the fact that tribunals do have power to regulate the potentially abusive conduct of litigation before them.

Disposal.
138.	Accordingly, we uphold the finding of the Tribunal in relation to the backdating issue and, by a majority, on the res judicata point.  We uphold the Claimants’ appeal that the Tribunal erred in finding that regulation 10 was applicable in the circumstances of this case and that the Council were therefore not in breach of their obligations in relation to the grievance procedure. 

139.	We consider that they were technically in breach, but in the exceptional circumstances of this case we are satisfied that it would not be just and equitable to award any uplift in the compensation as a consequence. We therefore disagree with the view expressed by the Tribunal that had there been a breach, the uplift should be 5%.

140.	Finally, we would like to pay tribute to the very careful and cogent analysis of the Tribunal, both in this case and indeed in the earlier Redcar case. We have not always agreed with their conclusions but they have dealt with many complex and wide-ranging arguments with skill and clarity.