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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bury Metropolitan Borough Council v Hamilton & Ors  UKEAT 0413-5_09_2801 (28 January 2011)
Cite as:  IRLR 358,  ICR 655,  UKEAT 0413-5_09_2801
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|At the Tribunal|
|On 13-17 September 2010|
THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT)
MR. T. HAYWOOD
MR. B. GIBBS
Transcript of Proceedings
|For the Council:||MR. JOHN CAVANAGH
(one of Her Majesty's Counsel)
Legal and Democratic Services Division
Bury Metropolitan Borough Council
|For the Thompsons Claimants:||MR. BRIAN NAPIER
(one of Her Majesty's Counsel)
MS. KATE STONE
23 Princes Street
|For the Cross Claimants:||MR. ROBIN ALLEN
(one of Her Majesty's Counsel)
MS. SARAH BOURKE
Stefan Cross Solicitors
Newcastle upon Tyne
|For the Council:||MR. DAVID READE
(one of Her Majesty's Counsel)
MR. SEAMUS SWEENEY
Corporate Services Directorate
Council of City of Sunderland
P.O. Box 100
For the Claimants:
MR. ROBIN ALLEN
(one of Her Majesty's Counsel)
MR. PHILIP ENGELMAN
Stefan Cross Solicitors
Newcastle upon Tyne
EQUAL PAY – Material factor defence and justification
BONUS CLAIMS (both appeals)
Equal pay claims by female local authority employees to the benefit of bonus paid to male colleagues under purported productivity bonus schemes – Councils' section 1 (3) defences in both cases dismissed by the employment tribunal on the basis that by the relevant dates any link between the receipt of bonus and productivity on the part of the comparators had been lost and that accordingly the Councils' explanation of the differential was a "sham"
Held, dismissing the appeals (save in respect of particular groups of claimants), that the Tribunal had been wrong to characterise the Council's explanation as a sham but that the underlying finding that the link between productivity and receipt of bonus had been lost meant that the non-payment of bonus to the claimants could not be justified and that since the difference in gender break-down between the groups of employees who did and did not receive bonus gave rise (save in those groups) to Enderby-type prima facie indirect discrimination the Councils' defences under section 1 (3) failed – Specific points:
(1) Discussion of meaning of "genuinely" in section 1 (3) and of the effect of the case-law relating to "sham" – Dicta in Hartlepool Borough Council v Dolphin  IRLR 168 disapproved
(2) Showing that the link between productivity and bonus had been lost did not mean that the Councils had failed in limine to discharge the burden of proof under section 1 (3) – They had sufficiently identified a "factor" explaining the differential by referring to the existence of the bonus schemes – The loss of the link with productivity was a matter going to justification
(3) Showing that the schemes had in their inception been non-discriminatory did not mean that the Councils had shown that the differential during the period complained of was due to a non-discriminatory factor
(4) Observations on the "structured analysis of equal pay claims" in the light of the criticisms of Arden LJ's formulation in Armstrong v Newcastle upon Tyne NHS Hospitals Trust  IRLR 124
PAY PROTECTION CLAIMS (Bury only)
Equal pay claims by female local authority employees to the benefit of payments made to male colleagues by way of pay protection following discontinuance of productivity bonus – Council's section 1 (3) defence upheld by tribunal on the basis (a) that it was impossible to know in advance of the tribunal's conclusion on the bonus claims what amounts might be payable to Claimants by way of pay protection and (b) that extending pay protection to the Claimants would in any event have been unaffordable
Held, allowing Claimants' appeal:
(a) that the practical impossibility of knowing at the moment that the claimed cause of action arose whether any sums were payable, and if so in what amount, could not give rise to a defence under section 1 (3)
(b) that the Council had adduced no sufficiently particularised evidence of unaffordability to found a defence under section 1 (3).
Redcar and Cleveland Borough Council v Bainbridge  ICR 133 and Pulham v London Borough of Barking and Dagenham  ICR 333 considered (and error in Pulham corrected)
THE HONOURABLE MR. JUSTICE UNDERHILL
(1) Traditionally there were three principal categories of local authority employee, which were subject to different arrangements for determining terms and conditions. Terms and conditions for manual workers were set out in what was known as the "White Book"; those for administrative, professional, technical and clerical workers in the "Purple Book"; and those for craftsmen in the "Red Book". Different national joint councils negotiated the respective terms. Most jobs covered by the White Book were the subject of a job evaluation study and graded accordingly, but there were no job evaluation studies for employees covered by the Purple Book or the Red Book. There was accordingly no agreed mechanism for comparing the value of the work done by employees in the three different categories.
(2) It has been common since the 1970s for employees in some White Book jobs to enjoy the benefit of bonus arrangements negotiated locally, entitling them to earnings between 33?% and 50% above the basic level of remuneration for their grade. Typically (though not invariably) the jobs benefiting from these arrangements were predominantly done by men, while jobs which were predominantly done by women tended not to attract a bonus entitlement.
(3) From at least the 1990s there was pressure for the negotiation of a single system of negotiation and grading covering employees in all three categories – so-called "single status". In April 1997 agreement was reached at national level amalgamating the White Book and Purple Book pay scales: this is the so–called "Green Book". However, it was recognised that the allocation of particular jobs to particular points in the scale had to be carried out following job evaluation studies and negotiation at local level, and there was accordingly no immediate effect on actual terms and conditions relating to pay and grading. Progress in most local authorities towards "single status agreements" implementing the Green Book was slow. Eventually, national agreement was reached for a deadline of 1 April 2007. In the event not all local authorities were able to meet even that deadline.
(4) In all local authorities the implementation of single status, when finally achieved, involved a formal withdrawal of the bonus schemes referred to above, with effect from the implementation date. But typically pay protection arrangements were agreed under which employees who had previously enjoyed an entitlement to bonus continued to receive bonus payments, whether at the same or a reduced level, for a further finite period.
THE BONUS SCHEMES: COMMON BACKGROUND
THE APPLICABLE LAW
"(3) An equality clause falling within subsection (2) (a), (b) or (c) above 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 and that factor—
(a) in the case of an equality clause falling within subsection (2) (a) or (b) above, must be a material difference between the woman's case and the man's; and
(b) in the case of an equality clause falling within subsection (2) (c) above, may be such a material difference."
(1) It is necessary first to identify the explanation for the differential complained of. (In the language of the statute, this is the "factor" to which the differential is "due"; but the terminology of "explanation" used by Lord Nicholls in Marshall is generally less clumsy.) The burden of proof is on the employer.
(2) It is then necessary to consider whether that explanation is "tainted with sex". What that not altogether happy metaphor means is that the explanation relied on must not itself involve sex discrimination, whether direct or indirect (see per Lord Browne-Wilkinson in Wallace, at pp. 211H-212A and per Lord Nicholls in Marshall, at pp. 202H–203A).
(3) In considering whether the explanation involves direct or indirect discrimination, the ordinary principles of the law of discrimination apply. That means that:(a) if the differential is the result of direct discrimination (in the sense established in Nagarajan v London Regional Transport  ICR 877) the defence under section 1 (3) will fail;(b) if the differential involves indirect discrimination of either the "PCP" or "Enderby" type - as to this distinction, see para. 16 below - the defence will fail unless the employer proves that the differential is objectively justified, applying the classic proportionality test;(c) if the employer's explanation involves neither direct nor indirect discrimination the defence will succeed, even if the factor relied on cannot be objectively justified – this is most vividly illustrated by the "mistake" cases such as Yorkshire Blood Transfusion Service v Plaskitt  ICR 74 and Tyldesley v TML Plastics  ICR 356, approved in Wallace.
(4) In conducting the exercise under (3), the ordinary principles governing the burden of proof in discrimination claims will apply. Thus if the claimant shows a prima facie case of discrimination (in the sense explained in Madarassy v Nomura International plc  ICR 867), the burden shifts to the employer to prove the absence of discrimination.
- The first kind of indirect discrimination occurs where the employer "applies" a "provision criterion or practice" (or "PCP" in the jargon) which puts or would put women at a particular disadvantage when compared with men – or, as it is often put, has a "disparate adverse impact": that is the formulation adopted in the relevant EU legislation and now incorporated also in the UK statutes.
- The second kind of indirect discrimination was first recognised in the decision of the European Court of Justice in Enderby v Frenchay Health Authority  ICR 112. In cases of the Enderby type, indirect discrimination is found where two groups of employees doing work of equal value receive different pay and there is a sufficiently substantial disparity in the gender break-down of the two groups. Mr. Cavanagh referred to indirect discrimination of the Enderby type as "tainting by numbers".
The essential difference between the two kinds of discrimination is that in the first case the employer has demonstrably done something (i.e. applied a PCP) to produce the disparity complained of, whereas in the second case no act on the part of the employer is identified but the nature and extent of the disparity is such as to justify the inference that it must nevertheless be the result of past discrimination (direct or indirect). It follows that this kind of indirect discrimination is essentially evidential in character - see Villalba at para. 113. In the case of both types, once the disparity has been established, the differential will – subject to the point which we consider below - be treated as unlawfully discriminatory unless the employer can show that it is "objectively justified".
THE COUNCIL'S APPEAL IN BURY
THE ISSUES BEFORE THE TRIBUNAL
(1) Paras. 20-26 plead a "brief summary of the GMF defence". Para. 20 reads as follows:"BonusabilityThe main GMF defence that will be relied upon by the respondent in relation to the period up to 31st March 2007 is that, where there is a pay differential between the claimant and comparators who, at the material time, were engaged on work rated as equivalent or work of equal value, the differential is explained by the fact that the comparators received a performance related bonus and the claimant jobs were not suitable for a performance related bonus. This will be described as the "bonusability defence."
The remaining paragraphs of the summary are immaterial.
(2) At paras. 42-53 the pleading states "the nature of the Respondent's defence". It is said that it is not understood that direct sex discrimination is alleged, but that if it is it is denied (para. 44). "PCP-type" indirect discrimination is denied at para. 46. It is also denied that the statistics raise a case of "Enderby-type" discrimination (paras. 47-51). At para. 52 the conclusion is pleaded that:"Accordingly, the respondent will say that it is sufficient in all cases, in order to succeed with its GMF defence, that the respondent can prove that there is a reason other than the difference in sex, for the pay differential. The respondent will further say that in all cases it is able to prove such a reason other than the difference in sex for the pay differential."However, at para. 53 it is pleaded in the alternative that objective justification can be proved if necessary.
(3) There follows a detailed exposition of "the GMF defences". We are concerned with "bonusability". As to that, the pleading deals first with why the comparators receive bonus. Para. 54 reads:"The bonuses that were received by the holders of the comparator jobs were genuine performance related bonuses (PRBs). If they need to be justified, they are justified on the basis of efficiency, effectiveness and productivity. The bonuses incentivised the employees concerned to work more productively and/or efficiently and/or at a faster pace, thus enabling the respondent to make efficiency savings. They were wholly or largely self-financing, and, in particular, enabled the work to be done by fewer employees than would otherwise have been the case and/or the saving of overtime. The PRBs enabled the respondent to require the employees concerned to work at a pace and performance level that was consistently above standard level."The point is made that the schemes were self-financing (para. 56) and that at first performance was carefully measured (para. 57). It is acknowledged (para. 58) that:"As the years passed, the bonuses stabilised, in the sense that it became unnecessary to measure the performance of the employees in the way that it had previously been done. Employees were known to be working to the higher productivity and so it was no longer cost-effective to expend money and resources on measurement, evaluation and monitoring. Moreover it was known that the workforce was working to the level of performance which merited the full bonus, because the tasks given to the employees for a particular day could only be accomplished if the employees worked to the level of performance which qualified for a full bonus."
After some further detail, and justification, of the "stabilisation" process, para. 63 pleads:
"The bonuses continued to be genuine performance related bonuses, notwithstanding the fact that they were not measured in the same way as before. The fact that employees usually or always received the full bonus resulted from the fact that they were always working to the full bonus performance level. During the period when bonuses were paid, the standard and productivity of the work done in the departments which paid bonuses was at a high level, and the respondent was much more successful than most local authorities in retaining work that was required to go to tender in-house."
As to why the Claimants do not receive bonus, the Council pleads, at para. 65:
"The reasons for providing a PRB to the holders of the comparator jobs did not apply to the claimants. Their jobs were not suitable for PRBs and/or efficiency savings could not be made through the use of PRBs. No bonus could be designed for the claimant jobs that would have been beneficial for service delivery or which would have been cost-effective."
That proposition is developed in the following paragraphs.
The case as so pleaded was maintained in the Council's opening and closing submissions before the Tribunal.
"20. It is certainly possible that a scheme which was sex-tainted at its inception could, because of changed circumstances, cease to be so at a later date. Equally a bonus scheme that was not sex-tainted when first introduced might become so in the light of changed circumstances. There were very significant changes in the bonus schemes and how they operated in the course of the years between their first introduction and 2001. In particular, well before 2001, the link with measured work had disappeared and different reasons for the payment of bonus at particular levels had emerged. The transition was associated with the dates when bonus became consolidated as part of basic pay, and with the onset of CCT. The original linkage which had, to an extent, existed between measured productivity and pay ceased to exist when there was a move to what is conveniently described as "tender-led" values. In other words, the earnings of employees came to be fixed not by how much work they did or how fast they did it, but by what could be paid to them if their employer was to operate in a competitive market. The reach of the schemes themselves, however, did not change with this fundamental move away from measured work – there was never any serious attempt to bring in female-dominated occupations; indeed there would appear to have been no thought given to this even as a possibility, and no awareness that within Bury that the pay inequality arising from the existence of bonus schemes might give rise to equality questions. That was not appreciated by all accounts until the arrival of Mr. Berry as Director of Personnel in 2001.
21. What did happen over time, however, is that bonus became automatic, so that it was never withheld. It became part of pay, notwithstanding the continuation of formal documentation by the administrative systems of the Respondent which suggested the contrary. The Tribunal is invited to look at the reality of the situation, and the reality is that bonus payments were, at the very latest by the mid-1990s, to all intents and purposes, part of pay, and seen as such by almost all of those who received them. After measurement of work ceased to be a determining principle in the fixing of pay, it was no longer possible to link payment to any defined level of performance (i.e. level 75, 100, 104 etc.). Neither was there any interest on the part of the Respondent in so doing."
The Claimants' case was that throughout the relevant period the payment of bonus to the comparator groups was indirectly discriminatory and could not be justified.
THE TRIBUNAL'S REASONS
(1) After an introductory section it makes, at paras. 22-70, its findings of fact as to the history of local authority bonus schemes in the relevant period and the Council's schemes in particular. In the latter section it makes some findings of fact which are in practice dispositive of some of the legal issues which it comes formally to consider at a later stage.
(2) At paras. 70-251 it examines in turn the bonus arrangements for each of the comparator groups.
(3) At paras. 252-296 it considers each of the Claimant groups, and in particular the extent to which their work lent itself to bonusability.
(4) At paras. 297-303 it sets out what it takes to be the applicable law. This includes a reference to the decision of this Tribunal in Dolphin and to Judge Clark's definition of "sham" in King's College London v Clark (EAT/1049/02), namely that:"A sham or non-genuine explanation is a false one, designed to disguise the true reason for the difference in pay, itself tainted by sex … ."
The Tribunal at para. 306 describes the phrase "itself tainted by sex" as "otiose", since:"If the explanation is a sham, then it matters not whether the true reason is tainted by sex."
It continues at para. 307:"The respondent therefore has, in short, to prove: an explanation which is genuine and not a sham; that the more favourable treatment is due to that reason and is significant and relevant; and that the reason is not the difference of sex. Should the respondent fail to prove any of those matters then the genuine material factor defence fails and there is no room for a justification defence. On the other hand, if the respondent succeeds, the burden reverts to the claimant to show prima facie indirect discrimination."
(5) The Tribunal's reasoning and conclusion in relation to the issue appear in a final section entitled "Application of the law to the facts as found" (paras. 324-368), which we analyse in the following paragraphs.
"In conclusion accordingly, upon this issue, we consider that while not a sham when first introduced, the bonus schemes became a sham and were not genuinely linked to productivity. There being no satisfactory evidence of a link between the bonus schemes and productivity we find … that the genuine material factor [defence] fails."
Having rejected the section 1 (3) defence on that basis, the Tribunal did not proceed to consider whether the explanation was "tainted by sex" or the question of objective justification: on its analysis, those issues simply did not arise – cf. its observation at para. 306.
(1) At para. 325 the Tribunal refers to Mr. Napier's concession set out at para. 20 above and observes that it would in any event have unequivocally rejected any contention that the schemes "were a sham from the start". It continues:"We found Mr. Rutter and Mr. Hale both to be honest witnesses. Genuine schemes were introduced which increased productivity, which were monitored and were self-financing. Up to the advent of CCT, the Tribunal is of the view there is more than ample evidence that the bonus schemes introduced by Mr. Rutter and/or maintained and monitored by him and his work study team were genuine. It was due to that factor that the male bonus earners were earning more than the female job groups. It was accordingly, a relevant material factor."
(2) At the end of para. 326 it holds that "the non-introduction of bonus schemes into the female work groups was not caused by the difference of sex" and gives its reasons for that conclusion. In essence it accepts the argument that the Claimants' jobs were "not apt or amenable to a bonus scheme of this type".
(3) Thus far, therefore, the Tribunal's findings favoured the Council. However, it went on to accept Mr. Napier's case that the position as at the introduction of the schemes later changed fundamentally. At paras. 329-330 it says:"329. We are, of course, concerned principally with the period between 2001 and 2007. The evidence demonstrates that there were very significant changes in the bonus schemes and how they operated over the 20-year period (or thereabouts) to 2001. Mr. Napier submitted that well before 2001, the link with measured work disappeared and different reasons for the payment of bonus at particular levels had emerged. The transition was associated with the dates when bonus schemes became consolidated as part of basic pay and with the onset of CCT. He goes on to say (in paragraph 20 of his submission) that the original link between measured productivity and pay ceased to exist and there was a move to "tender-led" values. The earnings of employees came to be fixed not by how much work they did or how fast they did it, but by what could be paid to them if their employer was able to operate in a competitive market. The payment of bonus became automatic.330. We consider that Mr. Napier and Miss Bourke (who made similar submissions) are correct in their assertion that the link between productivity and pay had long since ceased prior to 2001. Accordingly, we conclude that although not a sham from the start, the bonuses became a sham well before 2001."
(4) The Tribunal then goes on to make good that general conclusion in relation to each of the particular schemes in issue. It summarises the results at paras. 349-350 as follows:"349. The Tribunal considers that, looking at the work undertaken in the comparator work departments, the reality was that employees were simply deemed to be working at the required performance level. There was no evidence of any measurement to check that this was so. With the advent of CCT, there was often a need for employees to work at a rate which was competitive. There was no evidence that the respondents had used work study for planning bonus schemes for more than 10 years. No proper costings of schemes were undertaken. Costings were often the result of negotiation rather than based on work study and measured performance and productivity. There was, in the comparator departments, no satisfactory evidence of a link between bonus and productivity from well before 2001.350. The position is, we think, more than adequately summarised in Mr. Berry's letters sent to the comparator groups of December 2007 (an example of which appears at C2-766). He says there that during the consultation meetings, "concerns were raised that the bonus schemes were outdated and the links between payment of bonus, attendance and productivity may have been lost". That, in our judgment, is an accurate reflection of the position as the respondent itself appears to have recognised. Mr. Berry, indeed, expressed concerns which the respondent had about its vulnerability to equal pay claims (see in particular D-327 and 328 where Mr. Berry raises issues of pay protection and also the need to negotiate with relevant unions in order to protect the respondent against unfair dismissal claims from the bonus earners)."
THE COUNCIL'S APPEAL IN SUNDERLAND
THE ISSUES BEFORE THE TRIBUNAL
"20. Where particular Claimants are able to rely on the provisions of Section 1 (2) (b) of the Act, the First Respondent will contend that at all material times variations in pay were genuinely due to material factors which were not the difference of sex and which amounted to a material difference between the Claimants' cases and the relevant Comparators.
21. In relation to the Comparators who were formerly employed under the provisions of the White Book in the jobs listed in Paragraph 10.5 above, differences in pay between them and other workers rated as equivalent were explained by cost-neutral bonus payments arising out of productivity/efficiency incentive schemes which was a material difference which is not the difference of sex. The use of such a scheme to meet the objectives of the First Respondent is objectively justifiable if the same needs to be justified which is denied.
22. Although it is denied that the First Respondent is required to prove that a bonus scheme should, or could have been made available to the Claimants, the nature of the work of the Claimants is/was such that no similar scheme, or term could in any event have been transposed in their case because the nature of the work was quite different and it was not possible to provide bonuses based on enhanced productivity. The work done by the Comparators involved the provision of different types of services. It is denied that a bonus scheme, cost-neutral to the First Respondent could have been developed for the Claimants that would be beneficial for service delivery.
23. The local negotiations and agreements entered into with the trade unions were free of discrimination and reflected an objectively assessed need on the part of the First Respondent for such bonus schemes.
24. There could be no advantage to the First Respondent, to service users, or to ratepayers in introducing any bonus scheme to the Claimants in that the Claimants' salaries already compared favourably with that of the private sector. Further, bonus schemes were introduced on a cost neutral basis and, where appropriate, were introduced alongside a reduction in the numbers of the relevant workforce. The nature of the work performed by the Comparators was such that such an outcome was achievable. The nature of the Claimants' work was such that a reduction in the workforce associated with an increase in output would be detrimental to service delivery."
(The "market forces" arguments adumbrated at para. 24 was not in the end persisted in.)
THE TRIBUNAL'S REASONS
(1) After an introductory section the Tribunal at paras 9-18 gives, as section I and II, a summary of the relevant law.
(2) Section III is headed "The Issues and the Parties' Submissions". The parties had agreed an elaborate list of issues, which the Tribunal sets out but which we need not reproduce here. We note however that issue 10 was:"Whether the bonuses paid to the comparators by the first respondent were paid by the first respondent genuinely to encourage and reward productivity."The Claimants had sub-divided that into several sub-issues, though the accuracy of the division was disputed. One of the sub-issues was "were the bonuses genuine or a sham?"; and Mr. Engelman is recorded as having submitted that that was the most important question. Mr. Reade is recorded as having responded at length on the question of whether the bonus schemes in question were a sham, which he submitted was equivalent to whether they were entered into and maintained in bad faith.
(3) Section IV sets out the Tribunal's findings of fact over some 54 pages. We have already sufficiently summarised the broad background. At paras. 20.12-41 the Tribunal examines with great care each of the three schemes under which the comparators had been entitled to bonus – the gardeners', the refuse collectors' and road sweepers' schemes – examining the extent to which productivity was in fact measured and whether employees in practice ever received less than the maximum bonus figure. In the case of the gardeners' scheme it concludes, at para. 20.24:"In our judgment, by 1998 the purported bonus payments had long since ceased to have anything to do with productivity – even on the basis of maintaining rather than increasing standards – and were, as they were seen to be by workforce and management alike, a fixed part of salary."Essentially the same conclusion is reached in the case of the other two schemes. At para. 20.34 the Tribunal finds in relation to the refuse collectors' scheme that:"… by 1998 the payments had … long since ceased to have anything to do with productivity … and were perceived as being and were a fixed part of salary."In relation to the road sweepers it finds, at para 20.41:"As with the other schemes, it may very well be that the amount of work actually being carried out by each employee … was important to the respondent in calculating its tenders under CCT but the bonus had long since ceased to be, or to be seen as being, linked to productivity. In our judgment, neither the workforce nor management would have thought otherwise."At para. 20.44 the Tribunal considers whether the work done by the Claimants would have lent itself to the application of a true productivity bonus scheme, an issue which it describes as "bonusability". In the case of all categories save cleaners it holds that it would not.
(4) The Tribunal's conclusions appear at section V of the Reasons, comprising paras. 21-24, which we analyse more fully in the following paragraphs.
" … for the reasons we have given, we came to the conclusion that the bonus schemes were not genuine and thus that they were sex-tainted in relation to all claimants other than the leisure centre attendants … Accordingly, with regard to all [except the leisure centre attendants], the purported defence under section 1 (3) fails."
The route by which that conclusion is reached is not as easy to follow as it might be because it is presented in three very long paragraphs without any headings or breaks to act as signposts. But we can summarise it as follows.
"… simply … whether it is genuine. Were the schemes intended to and do they in fact achieve productivity improvements?"
"Whatever these three bonus schemes were originally intended to do and actually did in the 1970s, we had to consider that question in the context of a period commencing in the late 1990s. The position as it was more than 20 years earlier was, of course, of relevance and evidential value. However, in the intervening period a great deal had changed. In our judgment, with regard to none of these schemes was there the maintenance of the achievement of productivity improvements. Within the meaning of the test laid down in Marshall as explained in Dolphin, each of these three bonus schemes was a sham and a pretence and therefore could not be a explanation for the variations in pay."
After discussing the case of one individual comparator in more detail it concludes para. 21 by saying:
"Accordingly, we rejected the genuineness of the first respondent's proffered explanation."
• Gardeners. The original bonus scheme for gardeners assigned numerical values to levels of productivity in accordance with the then common science, or pseudo-science, of "work study". The amount of work which an employee might be expected to carry out while working at normal pace was described as "75". Under the scheme if an employee worked at "100" he would receive a bonus of 33?% of basic pay, and if he worked at "122" he would receive 50%. Systems were in place to measure and record an employee's achievement of the relevant levels of productivity. But the scheme changed in 1990 as a result of the changes associated with the introduction of CCT. Employees were assigned tasks for a given week which it was calculated (though not by way of any formal re-measurement) that they could only achieve by working at "122 performance", and on the basis that they would indeed perform those tasks they were to be paid what was described in the relevant agreement as "a fixed, pre-determined bonus" of 50%. If the tasks were finished within the week they could go home early on Friday (i.e. a variant of "task and finish"). If they failed to do the work assigned they would in theory have to stay on in their own time to complete it. However, the evidence was doubtful as to whether that ever occurred, and if it did it was not only highly exceptional but, on the evidence, highly contentious. The Tribunal found that in practice the bonus was always paid and constituted simply part of what employees were paid for working at the rate expected of (and by) them. Since bonus was now earned automatically there were no arrangements to monitor productivity: though employees still submitted paperwork the timings shown in the returns were entirely notional.
• Refuse collectors. As with the gardeners, the original scheme provided for bonus to be paid by reference to achievement of specified targets set using elaborate work study methodology. Bonus was initially variable, depending on achievement of particular targets, but from a date in the late 1980s was fixed at 50%. A new agreement was introduced in 1994, in response at least in part to the introduction of new ways of working (and in particular the introduction of wheelie-bins capable of being emptied mechanically into the refuse truck), which resulted in a reduction in the number of rounds and in the size of the workforce. Rounds were redesigned, without any re-measurement using work study techniques, and thenceforward employees received a 50% bonus simply for doing the rounds assigned: when the work was done they could go home. There was no monitoring of productivity: given the scheme as now operated it would have had no purpose. The rounds were comfortably achievable within the times assigned.
• Road sweepers. The evidence and findings with regard to the road sweepers' scheme were rather less full but they were to substantially the same effect. Bonus was paid simply for completing the assigned tasks for a week and was never withheld.
THE CLAIMANTS' CROSS-APPEAL IN BURY: PAY PROTECTION
• In Redcar the employment tribunal rejected the defence. Its reasoning is analysed by the Court of Appeal at paras. 122-3 (pp. 173-4) (see also para. 136 (p. 177)). The tribunal accepted that affording pay protection to the (male) employees who would lose by the abolition of bonus was legitimate. But the council neither considered at the time nor advanced any arguments subsequently as to why equivalent payments should not be made to female employees who should have been receiving the same bonus: it was aware that its non-payment of bonus to at least some groups of female employees was discriminatory. No evidence was given as to why those women should not have been included in the scheme. The tribunal would have been prepared to consider evidence about cost but it was given none. On appeal this Tribunal (Elias P presiding) found that the employment tribunal had misdirected itself, but it considered the justification issue for itself and came to the same conclusion. As summarised by the Court of Appeal (para. 138 (p. 177 G-H)) its essential reasoning was that
"where … the employer knew that he had been discriminating against the women and failed to consider whether [he] could exclude that discrimination after change over, it was impossible … to justify his arrangements."
The Court referred in particular to a comment by Elias P that:
"It would frustrate the principle of equality to deny [the claimants] benefits which, as everyone accepted, they were legally entitled to receive [our emphasis]. Had the employers corrected the inequality when they ought to have done, then there can be no doubt that these women would have been in exactly the same position as their comparators. They would have had the benefit of the pay protection."
• In Middlesbrough the employment tribunal also rejected the section 1 (3) defence and thus upheld the claimants' claims to pay protection. It found that, although at the time that it entered into the single status agreement the council had not accepted that its previous pay arrangements were discriminatory, it should have appreciated that there was a real risk that that would be held to be the case: see the Court of Appeal's summary of the reasoning at para. 148 (p. 180 D-E). Against that background it held that:
"[a]lthough … a period of protection of previously discriminatory pay, limited in time in order to phase it out, would be a legitimate aim, it had not been shown that this scheme was an appropriate and proportionate means of achieving that objective when the size of the disadvantaged group and the cost of including or excluding that group had not been calculated"
(see, again, the Court of Appeal's summary of the reasoning at para. 149 (p. 180G)). In that connection it attached particular weight to the fact that the pay protection arrangements had not been costed. That decision was overturned by this Tribunal, again presided over by Elias P, which held that the only possible conclusion on the facts as found was that the council had established its justification defence.
(1) In any case where the existence of past direct discrimination has been "recognised", the continuation for the future of such discrimination in the form of transitional or phasing-out arrangements cannot be justified: see para. 129 of the judgment (pp. 175-6), applying the decision of the European Court of Justice in Smith v Avdel Systems Ltd  ICR 596. The removal of such discrimination must be "immediate and full".
(2) The position as regards transitional arrangements which continue past indirect discrimination is more subtle. The key passage in the judgment is at paras. 131-5 (pp. 176-7). There appear to be some differences of emphasis in different parts of that passage, but the essential message is at para. 134 (p. 177 A-B), where the Court holds that in cases of indirect discrimination a "more flexible principle" should apply, under which the continuation of past indirect discrimination will not be unlawful if it can be justified. The tribunal will need to apply the proportionality test, but in doing so it will be relevant to consider "the employer's state of knowledge about the discriminatory effect of his provisions and the extent to which he tries to minimise that effect". That observation is picked up and amplified at para. 156, where the Court says:"As we have said, we do not think that it was correct to say that, merely because the employer knew that it had been discriminating in the past, it became impossible to justify the continuation of some discrimination after the reorganisation. We think it would still be possible (although more difficult) for an employer to justify where he was aware of the past discrimination. He could do so by demonstrating that he had done all he could to minimise the effect of the continuing discrimination but he was unable to eliminate it immediately."
(3) The employer in Redcar, having made the concession that it did (see para. 54 above), knew or ought to have known at the time that it agreed the pay protection arrangements that its previous pay system was discriminatory in the relevant respects. That being so, both the employment tribunal and this Tribunal were right to hold that the transitional arrangements could not be justified, and the claimants were entitled to the benefit of the pay protection provisions: see paras. 136-140 (pp. 177-8).
(4) In Middlesbrough the employer had at the material time made no such concession. The Court of Appeal reversed the decision of this Tribunal that the employment tribunal's reasoning, as summarised at para. 54 above, was flawed and held that its conclusion was legally open to it: see paras. 169-171 (p. 186).
(5) Although that was enough to dispose of the appeal, the Court of Appeal made some observations on the reasoning of this Tribunal in deciding that Middlesbrough's pay protection arrangements could be justified. At paras. 172-3 it commented on a particular passage which we have to consider below (see para. 66) and which we will accordingly not set out here. It then proceeded to criticise an observation to the effect that "all schemes of this nature" were likely to be justifiable. It said:"174. We are concerned about this statement which appears, in this kind of case, to take away from tribunals the task of deciding whether the employer's arrangements can be objectively justified notwithstanding the fact that they are prima facie indirectly discriminatory. The EAT seems to think that the same answer will apply in every case where, following pay reorganisation, pay protection is given to the employees who have been the advantaged group under the old arrangements and is denied to the gender group who have been discriminated against in the past. We do not think it can be right to take that essential evaluation away from tribunals. Moreover, we cannot accept that the answer will always be as the EAT thinks.175. It is apparent that the EAT in the Middlesbrough case was sympathetic to the position of an employer who, on finding that he has been or might have been discriminating against women seeks to reorganise his pay structure so as to avoid discrimination in the future. The EAT recognises that employers (or at least public employers such as these local authorities) will have a limited budget and many calls upon their resources. The argument accepted by the EAT in the Middlesbrough case is that in such circumstances, the employer will always be entitled to say that it must continue to discriminate against the women for another three or four years (albeit to a reducing extent) because it cannot afford to bring them into line with the men at the time of reorganisation. We find that a very surprising and undesirable general conclusion. We accept that a large public employer might be able to demonstrate that the constraints on its finances were so pressing that it could not do other than it did and that it was justified in putting the need to cushion the men's pay reduction ahead of the need to bring the women up to parity with the men. But we do not accept that that result should be a foregone conclusion. The employer must be put to proof that what he had done was objectively justified in the individual case.176. A significant part of Mr. Jeans' submission to this Court was concerned with the difficulties faced by local authorities with large workforces. His submissions began from the premise that the authorities were not in any way to blame where the pay of women employees had fallen behind the men's in a discriminatory way. It was unrealistic to expect the authorities to be able to prevent such inequalities arising. So, in cases of this kind, he submitted, that was where they were starting from. "We are where we are". Authorities such as Middlesbrough were having a very difficult time because large numbers of equal pay claims were cascading down upon them. At times, in the submissions of both Mr. Cavanagh and Mr. Jeans, it appeared that the authorities' stance was that they were under a duty to get rid of sex discrimination in pay only when claims were made and the inequality of pay had been demonstrated to them. In short, they only had to ensure equal pay in response to a successful claim. The EAT appears to have been sympathetic to those submissions. But, as Mr. Allen pointed out, equal pay legislation came into force in 1975 and, at that time, employers had been given 5 years in which to reorganise their pay structures so as to get rid of sex discrimination in pay. Mr. Allen submitted, and we accept, that an employer's duty since then has been to ensure that there was no sliding back into discrimination. Employers have been and are under a continuing duty to avoid sex discrimination in pay, regardless of whether their female employees seek to assert their rights by litigation.177. If the general rule suggested by the EAT were to apply, employers would be able to allow their pay structures to fall out of compliance with the law and then, when forced to do something about it as the result of claims being brought, would be able to assert that they could legitimately take a further three to four years to bring their pay structures into compliance. We do not think that such a situation is consistent with the provisions of the 1970 Act which have now been in force for over 30 years. We consider that it will be possible for an employer to justify the continuance of indirect sex discrimination through the discriminatory application of a pay protection scheme but not as a matter of course and only where the employer satisfies the test of justification as set out in Barry/Cadman."(The reference in the final paragraph is to the summaries of the requirement of objective justification by Lord Nicholls in Barry v Midland Bank plc  ICR 859, at p. 870, and in the judgment of the ECJ in Cadman v Health and Safety Executive  ICR 1623, at para. 32: these are set out at paras. 51-52 of the Court of Appeal's judgment (p. 154 D-F).)
THE COUNCIL'S CASE ON PAY PROTECTION
(a) that it was essential, both as a matter of fairness, and to prevent industrial relations unrest, to offer a cushion to those employees who would lose out financially by the withdrawal of bonus;
(b) that it would not have been practicable as at 1 April 2007 to make any payments to the Claimants since until the primary claims had been decided it could not be known what entitlements fell to be protected;
(c) "that … it would have been too expensive to extend pay protection in that manner" (para. 110 (4);
(d) "that if pay protection was offered to those who had not actually suffered a drop in pay it would be a payment for a different reason from the reason why the payments were being made to the comparators" (para. 110 (5)).
"It would not have been practicable for the Council to offer pay protection to the claimants who had not actually suffered a drop in pay, but who might have suffered a drop in pay had they been paid the same as the bonus earners, because it would have been impossible to be certain who had a good claim, until the litigation had run its course. And at the time when pay protection was under consideration for the bonus earners, no equal pay claims had been lodged against the Council. Even if it were possible to determine who had a good claim in advance, it would not have been possible to calculate their "loss" and therefore what they would have been entitled to receive by way of pay protection, because the amount would have varied depending upon which bonus earner was selected for that exercise. It would therefore have been grossly irresponsible and contrary to the Council's fiduciary duty to offer pay protection to the claimants on this basis and in any event it would have imposed a financial liability on the Council which it could ill-afford. And had the Council offered pay protection to those who had not actually suffered a drop in pay, this would have been a payment made for different reasons from the reasons why payments were being made to the comparators."
No attempt was made, in the statement or the documents referred to (nor, to anticipate, in his oral evidence), to put a figure on the proposition that extending pay protection to the Claimants was something which the Council could "ill afford".
THE TRIBUNAL'S REASONS
"353. … Mr. Cavanagh accepts that, in the circumstances of our findings, there will be prima facie discrimination in relation to pay protection regardless of the disparate impact issue … . This is because the Court of Appeal held in Bainbridge that the existence of historic pay discrimination which benefited the people who are now receiving pay protection means that there is prima facie discrimination as regards pay protection. It follows, therefore, that historically, the respondent in this case having chosen to benefit a predominantly male group in circumstances where the female group was disadvantaged, the application of pay protection post 1 April 2007 is, inevitably, tainted by indirect sex discrimination.
354. At paragraph 156 of Bainbridge, the Court of Appeal said this:
"We do not think it was correct to say that, merely because the employer knew that it had been discriminating in the past, it became impossible to justify the continuation of some discrimination after the reorganisation. We think it would still be possible (although more difficult) for an employer to justify where he was aware of the past discrimination. He could do so by demonstrating that he had done all he could to minimise the effect of the continuing discrimination but he was unable to eliminate it immediately."
355. In the context of pay protection, the Employment Appeal Tribunal in Surtees said the following at paragraph 108:
"We consider given that the purpose of the scheme was to cushion employees from the potentially disastrous effects of a sudden drop in pay, the Council was entitled to take the view that it should limit the benefit to those actually in that group and to exclude all others even if some of them ought to have been in the group. Unless the pay was actually being received, there was nothing to protect. We think that is itself sufficient justification, but it is reinforced by the fact that the need to reach a protected pay arrangement, with the agreement of the unions, was crucial to the making of a job evaluation scheme. Any assessment of future costing would inevitably be highly speculative and would undermine the ability to obtain agreement for the scheme."
356. Mr. Cavanagh submitted that only the comparators were going to suffer a drop in pay and that is the reason why the comparators were given pay protection and the claimants were not.
357. The Tribunal does not accept that the granting of pay protection to the comparators was not tainted by sex. It clearly was. On any view, the GMF having failed, there arises the statutory presumption of the difference of salary between the claimants and their comparators as being due to the difference of sex. That presumption may be displaced by the respondent establishing a genuine material factor defence under Section 1(3). This respondent cannot so do. The reason why the comparators were in receipt of pay protection (and therefore a higher salary) than the claimants was tainted by sex discrimination. The Equal Pay Act provides for that statutory presumption of sex discrimination.
358. Nevertheless, the Tribunal considers that the respondent has made out its case that it can justify the indirect discrimination resulting from the pay protection policy. The measures adopted by the respondent correspond to a real need upon the part of the respondent to implement single status and abolish the bonuses. There was recognition by the respondent that the bonuses were potentially discriminatory (as indeed we find they were). The co-operation of the unions was essential to the implementation of single status and, as a prelude thereto, of undergoing a job evaluation. We agree with Mr. Cavanagh's submissions, accordingly, that pay protection for the previous bonus earners was essential in industrial relations terms. Mr. Berry experienced a vivid illustration of the strength of the unions when industrial action was threatened by the refuse collectors in March 2008.
359. The dilemma facing Mr. Berry was well illustrated by the documents to which we have just referred at D327 to 328. The respondent was clearly caught in the dilemma of facing potential equal pay claims from the claimants and potential unfair dismissal claims from the comparators.
360. Many witnesses said that morale dropped when the issue was raised by Mr. Berry (by his letters of December 2006) that bonus was to be withdrawn. Pay protection was also recommended in the Green Book (see M-8).
361. We also accept Mr. Berry's evidence that there was no way of working out with any degree of precision to whom to make pay protection payments to (other than the former bonus earners). It would be an extremely difficult exercise to calculate how much pay protection payment to make to each individual employee not in receipt of bonus. For example, at A-282, the Stefan Cross claimant cites 94 comparators for her position of Night Care Assistant.
362. We agree with Mr. Cavanagh that this was not a case where the respondent was "bang to rights". We attach particular significance to the fact that the bonuses were not a sham, as we have found, from the outset. There appears to be no challenge from the claimants to the length of the pay protection period. It is limited to a three-year period on a tapering basis. This was a significant departure from the former scheme of protection to which Mr. Berry refers in his witness statement of red circling in effect for four years (with no tapering).
363. Objectively balancing the discriminatory effects of the pay protection on the one hand and the reasonable needs of the respondent on the other, the Tribunal is driven to the view that objectively, pay protection in this case can be justified. Mr. Morton in cross-examination indicated that he was in favour, in his capacity as a trade union official, of the principle of pay protection. The Trade Unions did not ask for pay protection for the female workers. However, the Trade Unions did wish to have pay protection for the former bonus earners.
364. Mr. Berry gave evidence, which we accept, that to extend pay protection to the claimant groups as well as the comparator groups would be prohibitively expensive. There was no actual costing but we can readily accept that extending pay protection in this way would be unaffordable.
365. We therefore conclude that the respondent has failed to establish a genuine material factor defence in relation to the bonus issue but has succeeded in establishing a genuine material factor defence in relation to the pay protection issue."
(a) that, while it was recognised that the non-payment of bonus to the Claimants was "potentially" discriminatory (see para. 358), it was far from certain that that was the case - this is what is being referred to at para. 362 by the phrase "bang to rights";
(b) that even if it should have been assumed, in some general sense, that all the Claimants were entitled to be paid bonus, it would have been impossible to calculate the amounts payable, and thus the amount of any pay protection, because all or most Claimants were making multiple comparisons which would have produced very different amounts by way of bonus - see para. 361;
(c) that it was clear, even in the absence (no doubt for the reason summarised at (b)) of any precise calculation, that to extend pay protection to the Claimants would be unaffordable: see para. 364.
(1) Irrelevant Considerations
(2) Misdirection by reference to Surtees
"We would accept that, if the appeal tribunal had been the tribunal of first instance, it would have been entitled to decide the issue of justification in that way. However, it was not and that passage must be treated with reserve. We note that the reasoning in that passage would have been equally applicable to the Redcar case and it would be unsatisfactory if the appeal tribunal were to promulgate two quite different decisions in two cases which were factually very similar without providing a rational basis for distinguishing them."
Mr. Napier and Mr. Allen submitted that in the light of that comment it was a misdirection for the Tribunal to take the passage from Surtees into account in its reasoning, as it must be taken to have done.
(3) Inadequate Consideration of the Issue of Knowledge
(4) Practicability of Implementing Pay Protection for Claimants
"We accept that a large public employer might be able to demonstrate that the constraints on its finances were so pressing that it could not do other than it did and that it was justified in putting the need to cushion the men's pay reduction ahead of the need to bring the women up to parity with the men. But we do not accept that that result should be a foregone conclusion. The employer must be put to proof that what he had done was objectively justified in the individual case."
Note 1 There are in both cases a few male claimants, claiming on the basis recently clarified in the judgment of this Tribunal in Hartlepool Borough Council v Llewellyn  ICR 1426; but nothing turns on this for present purposes. [Back] Note 2 In Bury the first-named lead Claimant was a Mrs. Bridges, but she has now settled her claim, and the appeal proceeds under the name of a different lead Claimant, Mrs. Hamilton. [Back] Note 3 The approach in Nagarajan has now been authoritatively re-affirmed by the Supreme Court in R (E) v Governing Body of JFS  IRLR 136: see Martin v Devonshires (UKEAT/0086/10).
[Back] Note 4 We note Professor Fredman’s reference in a recent article to the Act’s “myopic focus on the individual claim”: see ILJ vol. 37, at p. 208.
[Back] Note 5 This passage is reproduced, with only minor changes, from our judgment in Armstrong 2 (para. 20, at pp. 682F-683C).
[Back] Note 6 It is right to record that he scrupulously attributed the credit for this neat expression to Mr. Christopher Jeans QC.
[Back] Note 7 For this reason, although the phrase “disparate adverse impact” is sometimes used to describe the element of gender disproportion in an Enderby context, “impact” is not quite the right word because in such a case nothing producing an impact has been shown to have been done. (We made this point in Armstrong 2 (see para. 69), but it was garbled in the ICR report by the word “disparate” rather than the word “impact” being italicised – see p. 704 E-F.) [Back] Note 8 It is right to say that in Bainbridge the approval of Armstrong 1 was somewhat tentative; but in Gibson Smith and Maurice Kay LJJ (loc. cit.) expressed themselves much more firmly (though Pill LJ took the opposite view (see at paras. 49-50 (pp. 724-5)). Permission to appeal in Gibson has been given by the Supreme Court: the appeal is listed for June.
[Back] Note 9 The same might be said of the express requirement that the factor be “material”. It is an oddity of section 1 (3) that although so few words are used two at least of them are doing very little work. [Back] Note 10 That is a simple matter of English, but if confirmation were needed it can be found in the well-known speech of Diplock LJ in Snook v London & West Riding Investment Ltd  2 QB 786 (at p. 802). We were also referred to the recent decisions of the Court of Appeal in Consistent Group Ltd v Kalwak  IRLR 505, Protectacoat v Szilyagi  ICR 835 and Autoclenz Ltd v Belcher  IRLR 70, but counsel agreed that they did not in fact advance the argument in the present case.
[Back] Note 11 We were tempted to use the phrase “true explanation”, but “true” arguably contains the same latent ambiguity as “genuine”.
[Back] Note 12 “GMF” stands of course for “genuine material factor”. Though this piece of jargon is probably now ineradicable, we prefer the description “section 1 (3) defence”, since for reasons already suggested we do not think that the phrase “genuine material factor” (which does not precisely track the statutory language) is a very illuminating guide to the exercise required. [Back] Note 13 That concession was qualified in one respect, but the qualification is immaterial for present purposes. [Back] Note 14 NB that in Mr. Cavanagh’s usage “bonusable” merely means that a job carries with it, as a matter of fact, a productivity bonus scheme, rather than that its character makes it apt for the application of such a scheme. Although it is part of the Council’s case, so far as necessary, that the Claimants’ jobs did not so lend themselves, that is not what he means by saying that they were “non-bonusable”. We mention this point only because the term appears to have been used somewhat differently inSunderland. [Back] Note 15 See paras. 13 (9) and 79-83 of the Council’s Closing Submissions. We are not entirely clear how these groups fit into the broader groups of Claimants identified at para. 6 above; but nothing turns on this for present purposes.
[Back] Note 16 As noted above, this is a different use of the term “bonusable” from that in Bury. [Back] Note 17 In fact we were told that in Bury single status was not implemented, or in any event not fully, until a later date, but that 1st April remained the effective date for the removal of bonus. But nothing turns on this point for present purposes.
[Back] Note 18 In this (and the preceding) paragraph we partly reproduce the analysis of Bainbridge at paras. 22-25 of the judgment of this Tribunal in Pulham v London Borough of Barking and Dagenham  ICR 333 (see pp. 346-9). But Mr. Cavanagh pointed out, and we accept, that in one respect – namely whether “recognised” indirect discrimination can be justified - that summary may not have been entirely accurate, and the issues of interest in the present case are not identical to those in Pulham. We have accordingly made some changes. [Back] Note 19 We note, however, that in Nicholls the employment tribunal had held that the withholding of pay protection from the claimants was justified. This Tribunal (Elias P presiding) remitted the issue for rehearing on account of a misdirection. The tribunal reached the same conclusion at the remitted hearing: a further appeal to this Tribunal is pending. [Back] Note 20 The need for an apportionment exercise of this kind in appropriate cases has been recognised at least since the decision of the ECJ in Enderby. [Back] Note 21 We note that such evidence was adduced at the remittal hearing in Nicholls (see n. 19 above) and indeed that it persuaded the tribunal. Without prejudice to any question of the correctness of the decision itself, this illustrates that placing the burden on employers to prove a particularised case is not unrealistic. [Back]
Note 1 There are in both cases a few male claimants, claiming on the basis recently clarified in the judgment of this Tribunal in Hartlepool Borough Council v Llewellyn  ICR 1426; but nothing turns on this for present purposes. [Back]
Note 2 In Bury the first-named lead Claimant was a Mrs. Bridges, but she has now settled her claim, and the appeal proceeds under the name of a different lead Claimant, Mrs. Hamilton. [Back]
Note 3 The approach in Nagarajan has now been authoritatively re-affirmed by the Supreme Court in R (E) v Governing Body of JFS  IRLR 136: see Martin v Devonshires (UKEAT/0086/10). [Back]
Note 4 We note Professor Fredman’s reference in a recent article to the Act’s “myopic focus on the individual claim”: see ILJ vol. 37, at p. 208. [Back]
Note 5 This passage is reproduced, with only minor changes, from our judgment in Armstrong 2 (para. 20, at pp. 682F-683C). [Back]
Note 6 It is right to record that he scrupulously attributed the credit for this neat expression to Mr. Christopher Jeans QC. [Back]
Note 7 For this reason, although the phrase “disparate adverse impact” is sometimes used to describe the element of gender disproportion in an Enderby context, “impact” is not quite the right word because in such a case nothing producing an impact has been shown to have been done. (We made this point in Armstrong 2 (see para. 69), but it was garbled in the ICR report by the word “disparate” rather than the word “impact” being italicised – see p. 704 E-F.) [Back]
Note 8 It is right to say that in Bainbridge the approval of Armstrong 1 was somewhat tentative; but in Gibson Smith and Maurice Kay LJJ (loc. cit.) expressed themselves much more firmly (though Pill LJ took the opposite view (see at paras. 49-50 (pp. 724-5)). Permission to appeal in Gibson has been given by the Supreme Court: the appeal is listed for June. [Back]
Note 9 The same might be said of the express requirement that the factor be “material”. It is an oddity of section 1 (3) that although so few words are used two at least of them are doing very little work. [Back]
Note 10 That is a simple matter of English, but if confirmation were needed it can be found in the well-known speech of Diplock LJ in Snook v London & West Riding Investment Ltd  2 QB 786 (at p. 802). We were also referred to the recent decisions of the Court of Appeal in Consistent Group Ltd v Kalwak  IRLR 505, Protectacoat v Szilyagi  ICR 835 and Autoclenz Ltd v Belcher  IRLR 70, but counsel agreed that they did not in fact advance the argument in the present case. [Back]
Note 11 We were tempted to use the phrase “true explanation”, but “true” arguably contains the same latent ambiguity as “genuine”. [Back]
Note 12 “GMF” stands of course for “genuine material factor”. Though this piece of jargon is probably now ineradicable, we prefer the description “section 1 (3) defence”, since for reasons already suggested we do not think that the phrase “genuine material factor” (which does not precisely track the statutory language) is a very illuminating guide to the exercise required. [Back]
Note 13 That concession was qualified in one respect, but the qualification is immaterial for present purposes. [Back]
Note 14 NB that in Mr. Cavanagh’s usage “bonusable” merely means that a job carries with it, as a matter of fact, a productivity bonus scheme, rather than that its character makes it apt for the application of such a scheme. Although it is part of the Council’s case, so far as necessary, that the Claimants’ jobs did not so lend themselves, that is not what he means by saying that they were “non-bonusable”. We mention this point only because the term appears to have been used somewhat differently inSunderland. [Back]
Note 15 See paras. 13 (9) and 79-83 of the Council’s Closing Submissions. We are not entirely clear how these groups fit into the broader groups of Claimants identified at para. 6 above; but nothing turns on this for present purposes. [Back]
Note 16 As noted above, this is a different use of the term “bonusable” from that in Bury. [Back]
Note 17 In fact we were told that in Bury single status was not implemented, or in any event not fully, until a later date, but that 1st April remained the effective date for the removal of bonus. But nothing turns on this point for present purposes. [Back]
Note 18 In this (and the preceding) paragraph we partly reproduce the analysis of Bainbridge at paras. 22-25 of the judgment of this Tribunal in Pulham v London Borough of Barking and Dagenham  ICR 333 (see pp. 346-9). But Mr. Cavanagh pointed out, and we accept, that in one respect – namely whether “recognised” indirect discrimination can be justified - that summary may not have been entirely accurate, and the issues of interest in the present case are not identical to those in Pulham. We have accordingly made some changes. [Back]
Note 19 We note, however, that in Nicholls the employment tribunal had held that the withholding of pay protection from the claimants was justified. This Tribunal (Elias P presiding) remitted the issue for rehearing on account of a misdirection. The tribunal reached the same conclusion at the remitted hearing: a further appeal to this Tribunal is pending. [Back]
Note 20 The need for an apportionment exercise of this kind in appropriate cases has been recognised at least since the decision of the ECJ in Enderby. [Back]
Note 21 We note that such evidence was adduced at the remittal hearing in Nicholls (see n. 19 above) and indeed that it persuaded the tribunal. Without prejudice to any question of the correctness of the decision itself, this illustrates that placing the burden on employers to prove a particularised case is not unrealistic. [Back]