Ms S Haq and Others v The Audit Commission

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice Lewison,Sir Mark Waller
Judgment Date06 December 2012
Neutral Citation[2012] EWCA Civ 1621
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A3/2011/1164
Date06 December 2012

[2012] EWCA Civ 1621

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

THE HON MR JUSTICE UNDERHILL (PRESIDENT)

UKEAT/0123/10/LA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lord Justice Lewison

and

Sir Mark Waller

Case No: A3/2011/1164

Between
Ms S Haq & Ors
Appellants
and
The Audit Commission
Respondent

MS JANE McNEILL QC and MS HELEN GOWER (instructed by Russell Jones & Walker) for the Appellant

MR CHRISTOPHER JEANS QC and MISS JUDE SHEPHERD (instructed by Roger Hamilton, Audit Commision) for the Respondent

Hearing dates : 5 th and 6 th December 2011

Lord Justice Mummery

Introduction

1

In June 2008 nine women (the Claimants) employed by the Audit Commission began this case under the Equal Pay Act 1970, as amended (the 1970 Act). Since then they have been made redundant. Their jobs ended. Their case goes on. If, at some point, it is referred to Luxembourg for a ruling, it will probably not end before about 2016.

2

In the judgments of the Employment Tribunal (ET), in which the Audit Commission failed, and of the Employment Appeal Tribunal (EAT), in which the Audit Commission succeeded, the conclusions reached on each of the two issues that determine the outcome of the case differed:-

(1) Is this a case of prima facie sex discrimination? If so,

(2) Is the discrimination objectively justified?

General remarks

3

I will set the facts of the case and the law applicable to them in a wider scene with some preliminary remarks on the current spate of equal pay claims in the tribunals and of appeals generated by them. This is an opportunity to pause and take stock of what is going on in the workplace, in the tribunals and in the courts.

Specialist tribunals

4

Two specialist tribunals in disagreement is a sign that the appeal to this non-specialist court is not likely to be straightforward. The 1970 Act is not easy to interpret or to apply. I am not alone in thinking that the cases now being brought under it are more difficult than they were in the past: the evidence is more elaborate, the arguments are longer and more intricate and the accumulating judgments also grow longer and more complicated.

5

Over 30 years of litigation have not eradicated unjustified pay discrimination against both women and men. ( Unfairness in pay levels persists, but does not, of course, have anything to do with this legislation, this case or this court.) Equal pay litigation in the ETs has now reached almost epidemic proportions. Unlike most of the recent test cases involving high value and/or multiple claims, this is not a big case: the sums involved, though large enough to matter to the parties, are relatively modest. Nor would I call it a complicated case. Most equal pay cases are more complex on the facts and the law. Yet I have found this case (now in its third, but perhaps not final round) far more troublesome than most and, on reflection, my views about how this appeal should be decided have changed. The case turns mainly on its facts. The points of principle in play matter and not just to these parties, for there are many more cases to come.

Litigation and/or negotiation?

6

As the relevant events all happened before 1 October 2010, the case falls under the 1970 Act. Expensive and unpredictable equal pay cases dragging on for years and years with differing results at ascending levels of decision will now continue in the tribunals and courts under the Equality Act 2010.

7

Why do employees and their employers optimistically invest so much time, effort and money in the uncertainties of contests of this kind? The option of negotiation is often available. Constructive and skilful negotiations conducted in good faith can produce fairer, more realistic and more enduring benefits all round. They also avoid the long-term damage that litigation does to relationships between people who, for their common good, have to work together. Perhaps the question is a pointless one, because there are as many answers as there are cases. Perhaps the question is naïve, because negotiations are in fact as pointless as the question. Behind the question is a concern about avoidable litigation and its detrimental effects on the links in the indispensable "Human Chain" that transmits the "continuities and solidarities" of labour and life (Seamus Heaney Human Chain at p.18).

Legislative aim

8

The long-term goal of the equal pay legislation, which has been in force since 1975, is not, of course, interminable litigation between waged workers and their employers about their rights. They all have other things to do and to spend their money on. The aim is the elimination of sex discrimination against women and against men in matters of pay. Putting that uncontroversial aim into practice is taking a very long time indeed, which is not surprising as the whole set up involves, indeed requires, the clashing of rights not just between employer and employee, but also as between groups of employees. The fact that the rights are qualified, not absolute, has not deterred trips to the tribunals and confrontation in the courts, which have demonstrated that they are not necessarily the best places in which to put an end to the injustices of discrimination in the workplace.

Direct and indirect discrimination in pay

9

Direct sex discrimination in pay is not really a problem. Contested cases rarely occur in practice if the discrimination is direct, even brazen, and cannot possibly be justified under any circumstances.

10

Claims based on indirect sex discrimination are a different matter. They pose special problems of legal analysis, evidence and proof. The legal interpretation and sensible application of the relevant legislation, both domestic and European, to cases of alleged indirect discrimination are most severely tested in cases like the present, which involve distinctions that are highly debatable on the facts: is this a case of (a) lawful non-discriminatory pay differences; or (b) unlawful discriminatory pay differences; or (c) discriminatory pay differences that are lawful, because they are justified?

11

It is a truism, better repeated than left unsaid, that not every difference in pay between men and women is proof of unlawful sex discrimination. It is a useful tip about a trap to avoid. It does not really tell us much else. There is plenty of general guidance in the authorities on how to draw the line between what is lawful and what is unlawful. We are learning about that with the benefit of regularly updated instruction and from the educational experience of trial and error. Where to draw the line in the particular case is a topic on which expert (and non-expert) opinions are almost bound to differ in some cases. This is one of them.

12

The twists and turns of the arguments in discrimination decisions are fraught with danger and difficulty. The risk of unfortunate unintended consequences is ever-present. Removing or reversing unjustified indirect discrimination in the pay of one sex can impact on the pay of the other sex and can even result in unjustified indirect discrimination against them: see, for example, the discussion in Homer v. Chief Constable of West Yorkshire Police [2012] UKSC 15 at [26], [30] and [36] ( Homer).

Levelling playing fields and reversals of fortune

13

Reversals of fortune are regularly experienced by litigants in equal pay cases in the tribunals and courts. They are not usually explained by lack of experience, intelligence or understanding on the part of those entrusted with the task of finding sensible solutions that are both within the framework of the legislation and, preferably, workable in practice. The situations presented to the tribunals can sometimes hover on the verge of non-justiciability. Considerable demands are made on judicial skills of conscientious and objective judicial assessment of the detailed evidence and argument. No case can be decided judicially by the mindless application of decisions in other cases, or by the mechanical operation of an inflexible doctrine, or by easygoing leanings in favour of one side or the other.

14

A theory of indirect discrimination only has to be stated, as it was, for example, in Homer'sCase at [17], to alert the trained legal mind to a range of potential problems about the definition of basic terms and about acceptable modes of proof available in concrete cases:-

"The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic."

15

The wise words of Edmund Burke encapsulate the problem of putting that kind of thing into practice, whether in the workplace or in the tribunals and courts:-

"…circumstances are infinite and infinitely combined. Circumstances alter cases and practicality governs conclusions."

16

The architects of equal pay law understood that the procedures and non—specialist personnel in "ordinary" litigation in the civil courts were not suited to legal disputes that involve levelling playing fields, scrutinising the neutrality of requirements for their "reality" and sussing out and assessing situations of comparative economic disadvantage. Hence the designated (though non-exclusive) jurisdiction of the ET and of the EAT, in which most of the cases begin and end. The tribunals have built up an impressive body of specialist expertise supplemented by relevant professional skills.

17

The professional advisers and skilled advocates practising in this area are indispensable...

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