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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bainbridge & Ors v. Redcar & Cleveland Borough Council [2007] UKEAT 0424_06_2303 (23 March 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0424_06_2303.html Cite as: [2007] UKEAT 0424_06_2303, [2007] IRLR 494, [2007] UKEAT 424_6_2303 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS M McARTHUR
MR P SMITH
APPELLANT | |
RESPONDENT |
|
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
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.
Employment Tribunal held that they did not and the EAT agreed.
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.
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)
The backdating issue
The legislation
"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];"
"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."
The COT 3 Claimants
The Statutory Grievance Procedure
"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."
"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."
"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."
"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).
Were the Council in breach?
"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."
Should compensation be enhanced?
"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."
Were the procedures applicable to all claims?
"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."
Res judicata.
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."
"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)."
"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."
"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."
"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."
"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."
"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.
"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.
Election of remedies.
"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."
Disposal.