Caroline Cannop And Others+thomas Brown And Others V. Donna Alexander And Others+highland Council
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord President,Sir David Edward |
| Neutral Citation | [2008] CSIH 38 |
| Year | 2008 |
| Docket Number | XA14/08, |
| Court | Court of Session |
| Date | 11 June 2008 |
| Published date | 11 June 2008 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Sir David Edward | [2008] CSIH 38 XA14/08, XA21/08 and XA28/08 OPINION OF THE COURT delivered by THE LORD PRESIDENT in causis CAROLINE CANNOP and OTHERS First Appellants; and THOMAS BROWN and OTHERS Second Appellants; and DONNA ALEXANDER and OTHERS Third Appellants; against HIGHLAND COUNCIL Respondents: _______ |
Act: O'Brien, Q.C. (First and Second Appellants); Thompsons (First Appellants),
Digby Brown (Second Appellants)
Act: Hanretty, Q.C., Stobart ((Third Appellants); Balfour + Manson LLP (for Stefan Cross, Solicitors, Newcastle-upon-Tyne)
Alt: Peoples, Q.C.; MacRoberts (Respondents)
11 June 2008
The legislative context
[1] The Equal Pay Act 1970 (as amended) provides:
"1(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 in the woman's
contract is or becomes less favourable to the woman than a term of a similar kind in a 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 to that of a
man in the same employment -
(i) if (apart from the equality clause) any term of the woman's
contract 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;
...
(5) A woman is to be regarded as employed on working rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the valuation being made on a system setting different values for men and women on the same demand under any heading.
...
2(1) Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an employment tribunal.
...
(4) No determination may be made by an employment tribunal in the following proceedings -
(a) on a complaint under subsection (1) above,
...
unless the proceedings are instituted on or before the qualifying date (determined in accordance with section 2ZA below).
(5) A woman shall not be entitled, in proceedings brought in respect of a contravention of a term modified or included by virtue of an equality clause (including proceedings before an employment tribunal), to be awarded any payment by way of arrears of remuneration or damages -
...
(b) in proceedings in Scotland, in respect of a time before the period
determined in accordance with section 2ZC.
...
2ZA ...
(3) In a standard case [which includes an equal pay claim case], the qualifying date is the date following six months after the last day on which the woman was employed in the employment.
...
2ZC(1) This section applies, in relation to an award of any payment by way of arrears of remuneration or damages in proceedings in Scotland in respect of a woman's employment, for the purpose of determining the period mentioned in section 2(5)(b) above.
(2) ... that period is the period of five years which ends on the day on which the proceedings were instituted ... ".
[2] The Employment Act 2002 provides:
"29(1) Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect."
Part 2 of Schedule 2 provides:
"Grievance Procedures
Chapter 1
Standard Procedure
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 that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance ...
...
Chapter 2
Modified Procedure
Step 1: Statement of Grievance
9. The employee must -
(a) set out in writing -
(i) the grievance, and
(ii) the basis for it, and
(b) send the statement or a copy of it to the employer.
Step 2: Response
10. The employer must set out his response in writing and send the statement or a copy of it to the employee.
... ".
Section 32 (which applies to tribunal jurisdictions which include that under section 2 of the Equal Pay Act 1970) provides:
" ...
(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if -
(a) it concerns a matter in relation to which the requirement in
paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with.
... ",
Section 31 makes provision for adjustment of awards where a statutory grievance procedure has not, through the failure of the employee or the employer, been completed.
[3] The effect of section 32 of the 2002 Act is mandatorily to oust the jurisdiction of an employment tribunal where the employee has not complied with the relevant requirement under Schedule 2.
[4] Article 141 (formerly Article 119) of the Treaty of Rome (as revised with effect from 1 December 2002) provides:
"1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
... "
Council Directive No. 75/117/EEC ("the Equal Pay Directive") provides:
"Article 2
Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay to pursue their claims by judicial process after possible recourse to other competent authorities.
...
Article 6
Member States shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed."
Proceedings before the employment tribunal
[5] A substantial number of employees (primarily but not exclusively women) of the respondents have presented to an employment tribunal claims that in their respective employments the requirements of the Equal Pay Act have not been satisfied; they seek remedies accordingly. Certain of these claimants (the first appellants) are members of either Unite or Unison; others (the second appellants) are members of the General Municipal and Boiler Workers Union; these two groups of claimants are hereinafter collectively referred to as "the union-backed claimants". Yet other claimants have instructed Messrs Stefan Cross, Solicitors, to act on their behalf; these claimants are hereinafter referred to as "the Stefan Cross claimants".
[6] A very substantial number of claims in respect of equal pay are presently before employment tribunals in Scotland. They include claims made against other Scottish local authorities and other public bodies, including health authorities. Those responsible for organising the business of employment tribunals have endeavoured to manage the large volume of such claims by dealing with them in groups, issues which are common to a number of claimants being dealt with collectively. An issue which has arisen for decision is whether the Stefan Cross claimants are, by virtue of the operation of the Employment Act 2002, for the time being excluded from invoking the...
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