Mrs M McWilliams v Bury Metropolitan Borough Council: 2400936/2008

EMPLOYMENT TRIBUNALS

Case No 2400936/2008

Between

Mrs M McWilliamsClaimant

Bury Metropolitan Borough CouncilRespondent

Before

Employment Judge Horne

Miss R Wedderspoon (instructed by counsel) for respondent

Date 13 December 2019

JUDGMENT

In this judgment:(a) “the claim form” means the claim form presented on 30 January 2008;

(b) “the Schedule of Comparators” means the schedule of comparators attached to the claim form; and

[1]Those parts of Mrs McWilliams’ claim that are set out in Annex A are struck out on the ground that they have no reasonable prospect of success.

[2]Except to the extent that it appears in Annex D below, Mrs McWilliams’ claim as it appears in the claim form is struck out on the basis that it is not actively pursued.

[3]The claimant is not required to amend her claim in order to pursue it on the basis set out in Annex D.

[4]The claimant is required to amend her claim in order to compare herself to any male employee whose role does not appear under the heading, “Manual Grade 5” in the Schedule of Comparators. Permission to amend in this respect is refused.

[5]Accordingly, the only part of Mrs McWilliams’ claim that will proceed is that contained in Annex D. ANNEX D Mrs McWilliams alleges that, whilst employed in the role of Driver/Vending Supervisor she was employed on work rated as equivalent with male employees in the role of Driver. They were paid at Manual Grade 5 and the claimant was paid at Manual Grade 3.

REASONS

[1]By a notice sent to the parties on 22 November 2017, this preliminary hearing was convened in order to determine, amongst other things, “…whether the claim should be struck out on the ground that it has no reasonable prospect of success”.

[2]As will be explained more fully below, I also had to consider a number of ancillary matters. One of these was Mrs McWilliams’ application to adjourn the hearing. Another was the question of whether Mrs McWilliams needed to amend her claim and whether such an amendment should be granted. Procedural history

[3]The claimant was employed by the respondent from 13 October 1987 until 8 September 2008. From 1991 her role title was Driver/Vending Supervisor at Bury College. She was paid at Manual Grade 3.

[4]On 30 January 2008, a large number of claimants including Mrs McWilliams presented a claim to the tribunal. At that time they were represented by Thompsons Solicitors. The claim alleged breach of the Equal Pay Act 1970 and Article 141 of the (then) Treaty of Rome.

[5]Box 6, paragraph 3 of the claim form read as follows: “The claimants[‘]s jobs … have … (a) been rated as equivalent under the NJC Manual Worker Job Evaluation Scheme (White Book Claimants) to the jobs undertaken by groups of male comparator employees (White Book Comparators)….

[6]Paragraph 5 set out the alternative contention that the White Book Claimants did work of equal value to their comparators.

[7]The claim form was accompanied by a Schedule of Comparators. In this document, various male-dominated roles were grouped together under headings corresponding to the grade at which they were paid. Under the heading, “Manual Grade 5” there were 10 different roles, of which one was “Driver”.

[8]On 28 February 2008 the respondent submitted its ET3 response form. In its grounds for resisting the claim, the respondent referred to two job evaluation studies (JESs) carried out by the respondent, respectively in 1987 and 2004.

[9]Over the years that followed, the tribunal determined various preliminary issues and those decisions were challenged on appeal. The appeal judgment was handed down on 28 January 2011. Since that date, most of the claims have settled, but a few remain, including the claim brought by Mrs McWilliams. Thompsons no longer represent her.

[10]On 8 November 2017, Mrs McWilliams and her husband appeared at a preliminary hearing for the purpose of case management. At that hearing, Mr McWilliams explained to the tribunal the basis on which Mrs McWilliams was pursuing her claim. That explanation was noted and recorded in Annex A to a written case management order.

[11]At no point during the hearing did Mr or Mrs McWilliams mention any job evaluation study or allege that her work had been rated as equivalent to the work of any male employee.

[12]Annex A read as follows: “ 1. Mrs McWilliams was employed as a driver. She was paid at Grade 3. She did like work with the following men:1.1 Graham Shaw

1.2 Duncan Stoddard

1.3 Mr Chris Hobin

1.4 Mr Ashley Crumblehome

1.5 Mr John Tuohy

1.6 Mr Alan Chadwick 2. It is Mrs McWilliams’ case that at least some of the men, including Mr Shaw, were paid at Grade 5.”

[13]Mr Tuohy, one of the comparators named in Annex A, was one of the original claimants whose equal pay claim was presented in 2008. As between Mr Tuohy and the respondent, it is common ground that Mr Tuohy was employed as a Driver/Carer within the respondent’s Adult Care Services Division. The respondent’s amended response to Mr Tuohy’s claim asserts that Mr Crumblehome also held that role.

[14]In an effort to gather supporting evidence, Mrs McWilliams made two requests of the respondent under the Freedom of Information Act 2000 (FOIA). She sought a list of all persons who had been entitled to drive Council vehicles. She also sought a list of all those people who had held the role of Vending Supervisor prior to the claimant. Those requests were declined on various grounds. The claimant has since complained to the Information Commissioner.

[15]On receipt of Annex A, the respondent submitted an amended response. In broad outline, the respondent relied on the following grounds for resisting the claim: 15.1. Mr Shaw and the claimant were employed on like work. There was, however, no need for an equality clause because they were paid at virtually the same rate. There was a small difference of 1.5 pence per hour, explained by the fact that the claimant received a school meal and Mr Shaw did not. 15.2. The remaining comparators were not employed on like work with the claimant. 15.3. Those comparators employed on manual grades were assigned those grades pursuant to the 1987 JES.

[16]The respondent sought a preliminary hearing to consider whether Mrs McWilliams’ claim should be struck out. In support of its application, the respondent provided the following documents, amongst others: 16.1. A letter dated 19 June 1991 offering the claimant the role of “Driver/Vending Supervisor for 30 hours at Grade 3”. 16.2. Pay slips showing the claimant’s and Mr Shaw’s hourly rate of pay; 16.3. An extract from the National Joint Council Agreement, section 1 - paragraph 2 set out the rates and added, “these rates are reduced by 58.33p per week (1.5 per hour) in respect of meals provided to employees in school meals, staff canteens and day nurseries”; 16.4. A written job description for the role of Catering Manager – Central Production Unit – Mr Stoddard’s name was handwritten on the job description; 16.5. Mr C Hobin’s statement of employment particulars, offer letter and job description for the role of Chef; and 16.6. Screen shots from the personnel records of the remaining comparators, setting out each comparator’s role title. According to the records, Mr Crumbleholme was employed as a “Driver/Carer”, Mr Tuohy was also employed as a “Driver/Carer” and Mr Chadwick was a “Cleaner and Site Manager”.

[17]By letter dated 7 December 2017, Mrs McWilliams sought a postponement of the preliminary hearing on the ground that the information requested under FOIA was “critical” to her case. I refused the postponement, adding that, if Mrs McWilliams considered that she needed particular documents, she could seek an order for disclosure at the preliminary hearing.

[18]Mrs McWilliams did not attend the preliminary hearing, but her husband attended on her behalf. At the outset, he made an application to adjourn. The basis of his application was twofold: 18.1. To try and trace a witness, Mr Rogers, who had initially interviewed Mrs McWilliams for the role of Driver/Vending Supervisor. It was Mr McWilliams’ belief that Mr Rogers would confirm that that role had initially been advertised as a Manual Grade 5 role and that the respondent only decided to pay a Manual Grade 3 wage for it because the person appointed to the role was a woman. 18.2. To obtain disclosure of the JESs so far as they related to the role of “supervisor”. It was not clear whether, by this, Mr McWilliams meant any role with the word, “supervisor” in the title, or any role which included some element of supervision. The relevance of the JESs, Mr McWilliams said, was to establish whether any supervisors were graded at Manual Grade 3. If they were, Mrs McWilliams would withdraw her claim. Mr McWilliams believed, however, that the JESs had rated all supervisor roles at at least Grade 5 and that disclosure of documents would reveal this fact.

[19]I asked Mr McWilliams if he was now arguing, despite the contents of Annex A, that Mrs McWilliams did work that was rated as equivalent to that of male employees. He said that he was. He was not, however, in a position to identify any such employees, because he wanted to see the JESs first.

[20]Once Mr McWilliams had made his submissions in support of an adjournment, I informed him that I would also be considering the question of whether Mrs McWilliams would need to amend her claim. I also said I would like to hear his arguments as to why the claim should not be struck out, so I could decide on all the contentious points at the same time. Mr McWilliams then made some further submissions which largely repeated the application for an adjournment. He did not suggest that Mrs McWilliams did the same or similar work as any of her comparators.

[21]During the course of submissions I drew the parties’ attention to the contents of the original claim form. Ms Wedderspoon, for the respondent, conceded that Mrs McWilliams would not need an amendment to her claim to pursue an allegation that was clearly set out in the claim form, even if it did not appear in the much later formulation of her claim in Annex A. I did ask Mr McWilliams whether his wife compared herself to any of the roles under the heading of “Manual Grade 5”. The only such role identified by Mr McWilliams was “Driver”. Relevant law Overriding objective

Relevant law

[22]Rule 2 of the Employment Tribunal Rules of Procedure 2013 sets out the overriding objective as follows: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Whether amendment is required

[23]A tribunal must not adjudicate on a claim that is not before it: Chapman v. Simon [1993] EWCA Civ 37.

[24]In Chandhok v. Tirkey UKEAT0190/14, Langstaff P observed:17. ….Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. ...

18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

[25]In Ali v. Office for National Statistics

[2005] IRLR 201

the Court of Appeal emphasised that, in deciding whether a particular complaint has been raised in a claim form, the tribunal should examine the document as a whole. Merely ticking a box alleging discrimination by reference to a protected characteristic may not be sufficient to raise a complaint of such discrimination if the underlying facts cannot be ascertained from the narrative.

[26]In Amin v Wincanton Group Ltd

UKEAT/0508/10/DA

, HHJ Serota distinguished between a claim that is “pleaded but poorly particularised” and a Chapman v. Simon case, where the complaint is not pleaded at all. In the former case, the claimant is not required to amend the claim. The lack of proper particulars does not affect the tribunal’s jurisdiction. The remedy in an appropriate case would be to strike out the relevant part of the claim. It is, HHJ Serota observed, “clearly undesirable that important issues in Employment Tribunal proceedings should be determined by pleading points”. Whether amendment should be granted

[27]Guidance as to whether or not to allow applications to amend is given in the case of Selkent Bus Company v. Moore

[1996] IRLR 661

. The following points emerge: 27.1. A careful balancing exercise is required. 27.2. The tribunal should consider whether the amendment is merely a relabelling of facts already relied on in the claim form or whether it seeks to introduce a wholly new claim. (Technical distinctions are not important here: what is relevant is the degree of additional factual enquiry needed by the claim in its amended form: Abercrombie & Ors v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

). 27.3. Where the amendment raises substantial additional factual enquiry, the tribunal should give greater prominence to the issue of time limits and whether or not the relevant time limit should be extended. 27.4. The tribunal should have regard to the manner and timing of the amendment. 27.5. The paramount consideration remains that of comparative disadvantage. The tribunal must balance the disadvantage to the claimant caused by refusing the amendment against the disadvantage to the respondent caused by allowing it. Striking out

[28]Rule 37(1) gives a tribunal the power to strike out all or part of a claim on grounds including (a) that it “has no reasonable prospect of success”; and (d) “it has not been actively pursued”.

[29]It is well established that it is inappropriate to strike out claims – and discrimination claims in particular – where there are central disputes of fact: Anyanwu & another v South Bank Students Union

[2001] ICR 391

. It will only be in an exceptional case that such a claim will be struck out as having no reasonable prospect of success where the central facts are in dispute: Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

, CA. “Like work” and “work rated as equivalent”

[30]Section 1(2) of the Equal Pay Act 1970 sets out the circumstances, prior to the coming into force of the Equality Act 2010, in which an equality clause has effect in relation to the terms of a woman’s contract. Those circumstances include(a) “where the woman is employed on like work with a man in the same employment…”; and

(b) “where the woman is employed on work rated as equivalent with that of a man in the same employment”.

[31]By section 1(3), “An equality clause … shall not operate in relation to a varation between the woman’s contract and the man’s contract if the employer prove that the variation is genuinely due to a material factor which is not the difference of sex and that factor…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.

[32]Section 1(4) provided as follows: “(4) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.”

[33]The “like work” test involves a two-stage test: 33.1. The first stage is for the tribunal to consider whether the nature of the work is the same or broadly similar? This requires merely a broad, general consideration, avoiding a pedantic approach; 33.2. The second stage requires the tribunal to analyse the details of the work more closely and to determine: 33.2.1. The differences, if any, in the tasks actually performed; 33.2.2. The frequency or otherwise with which such differences occur in practice; and 33.2.3. The nature and extent of any such differences. (See Capper Pass v. Lawton

[1976] IRLR 366

and Waddington v. Leicester Council for Voluntary Services

[1977] IRLR 32

[34]By section 1(5), “a woman is to be regarded as employed on work 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 evaluation being made on a system setting different values for men and women on the same demand under any heading.” Conclusions Adjournment

Conclusions

[35]In my view it would not serve the overriding objective to adjourn this preliminary hearing. Avoiding further delay is an important factor in this claim, which is about to reach its tenth anniversary.

[36]I am not persuaded that the adjournment would help to deal with the case fairly. Dealing with the two pieces of evidence that the claimant wishes to obtain: 36.1. There is little basis for thinking that Mrs McWilliams would be able to track down Mr Rogers after so many years. She has no positive leads other than the fact that Mr Rogers was working for the respondent in 1991. It is still less likely that, if traced, Mr Rogers would admit to having changed the rate of pay for a Grade 5 job simply because the post-holder was a woman. And even if he did, Mrs McWilliams would still need to identify a flesh and blood comparator to bring her claim under the Equal Pay Act 1970. 36.2. It is still far from clear how the JESs could Mrs McWilliams to succeed in her claim as it is currently formulated. They are highly unlikely to show that she did like work with any of the comparators named in Annex A. That in any event does not appear to be the purpose for which Mrs McWilliams wants them. Rather, she wants to look through all the “supervisor” roles to see if Driver/Vending Supervisor is there and whether it was rated at Manual Grade 5. If it was, she wants to compare herself to men doing any “supervisor” roles that were also rated at Manual Grade 5. To put it another way, she wants the JESs in order to change her case, rather than to support her existing case. For the reasons given in relation to the amendment dispute, it would not be fair to allow the claimant to reformulate her claim. Amendment

[37]The respondent has conceded that, notwithstanding Annex A, it is already part of Mrs McWilliams’ claim that she was employed on work rated as equivalent with roles in the Schedule of Comparators. No amendment is therefore needed to enable Mrs McWilliams to allege that Driver/Vending Supervisor was rated as equivalent with the role of Manual Grade 5 Driver. That is the only role in the list to which Mrs McWilliams wishes to nominate as a comparator.

[38]If the claimant wishes to argue that her role was rated as equivalent with any “supervisor” role that does appear in the Schedule of Comparators, she will need to amend her claim.

[39]In my view the overriding objective points strongly towards refusing the amendment. This is a case where the statutory time limits and the manner and timing of the amendment application take on particular prominence. Mrs McWilliams’ solicitors have known about the JESs since January 2008 at the latest, yet Mrs McWilliams has only just asked to see them. Mrs McWilliams has not identified the roles which she says were rated as equivalent to Driver/Vending Supervisor. It is as yet unclear precisely what new areas of factual enquiry would be raised by allowing the claimant to introduce new comparators. Potentially there could be a great many, as the JESs are likely to include many roles that have some element of supervision.

[40]Each time a new comparator is alleged, or the basis of comparison changes (for example, “rated as equivalent” instead of “like work”), new avenues of factual enquiry are opened up. New factual issues are likely to be difficult for the respondent to deal with effectively because of the extreme delay. The respondent would be put at a real disadvantage in marshalling the evidence. It would have to explain differences in pay going back 6 years from 2008, possibly by reference to the events in 1991 when the Grade 3 role was first offered to Mrs McWilliams. Any factual issue relating to the 1987 JES will involve looking back over thirty years. Strike-out of the Annex A claim

[41]Turning to Annex A, I am persuaded that the claim as formulated there stands no reasonable prospect of success. I take the six comparators in turn: 41.1. Mr Shaw. Whilst Mrs McWilliams and Mr Shaw were employed on like work, there was only a miniscule difference in pay. The difference of 1.5p per hour is transparently explained by the National Joint Council agreement in respect of employees who received school meals. It is, in my view, inconceivable that a tribunal would find that the 1.5p gap was due to the difference in sex. 41.2. Mr Stoddard. There is no reasonable prospect of Mrs McWilliams showing that she and Mr Stoddard were employed on like work. Mr Stoddard managed the whole Central Production Unit. That work was not even broadly similar to that of a Driver/Vending Supervisor. 41.3. Mr Hobin. Mr Hobin was a chef. There is no reasonable prospect of his being found to have been employed on like work with a Driver/Vending Supervisor. The nature of the work is not even broadly comparable. 41.4. Mr Tuohy and Mr Crumblehome. Driver/Carers will not be found to have been employed on like work with Driver/Vending Supervisor. In comparing roles which partly consist of driving, Mr McWilliams urged me to focus in particular on the non-driving parts of the role. Adopting that approach, I have compared a Vending Supervisor at a college with that Carers working within Adult Social Care. Even on the very limited material available at this stage, it is obvious to me that the roles are not even broadly similar. 41.5. Mr Chadwick. The role of Site Manager does not appear to be even arguably the same or broadly similar to the work of a Driver/Vending Supervisor. There is no reasonable prospect of Mrs McWilliams being found to have been employed on like work with Mr Chadwick. Strike-out of the originally-formulated claim

[42]Mr McWilliams confirmed that, of the comparator roles identified in the Schedule of Comparators, Mrs McWilliams only compares her role to the role of Driver. She is not actively pursuing any other allegation as set out in the originallypleaded claim. Indeed it is Mr McWilliams’ position that the claim form, as drafted on his wife’s behalf, “went off in a different direction” from the true nature of her claim. The surviving element of the claim

[43]It follows from the above that the only surviving element of Mrs McWilliams’ claim is her allegation that she was employed on work rated as equivalent with male Drivers. I have not examined the merits of that claim. It would be premature to do so without seeing the relevant part of the JESs. If the JESs support Mrs McWilliams’ contention, the claim should be determined at a hearing. If, on the other hand, the JESs suggest that the roles were not rated as equivalent, there may need to be a further preliminary hearing to consider prospects of success.

Facts

[44]On 6 August 2018, the claimant signed a letter addressed to the respondent, stating “I work as a Driver at the Central Production Unit in Willow Street” and asking them to send her a copy of her Job Description and Contract of Employment. The claimant, when asked about this in cross examination, said she thought it had been typed by her husband but agreed that she had read it and agreed with it and signed it.

[45]In a letter dated 15 August 2018 to the Tribunal, Mr McWilliams wrote: “Margaret requested an amendment to cook but was told by Thompson that it was too late.”

[46]At this hearing, Mr McWilliams was asked when this was. Mr McWilliams was unable to say when the claimant had been told this but thought it was a long time ago.

[47]In the letter of 15 August 2018, Mr McWilliams wrote that they were looking for this document, amongst other things, but if they could not find them they would apply to Thompsons solicitors for urgent copies. I have not been shown a copy of any letter from Thompsons about this matter.

[48]At the hearing on 9 November 2018, Employment Judge Feeney discovered that the claimant had not provided the details she had been ordered to provide to the respondent. The judge decided to postpone the hearing and made orders, including the unless orders which are relied on as one of the bases for the respondent’s application at this preliminary hearing for the claim to be struck out. The orders to provide further particulars were to be complied with by 30 November 2018, failing which the claim was to be struck out without further order.

[49]In a letter dated 24 November 2018, received by the tribunal on 26 November 2018, the claimant set out details of the application she was making to amend her claim by changing her job title from driver/vending supervisor to cook grade 3. The respondent says this does not provide all the information required by the unless order.

[50]By a letter dated 16 February 2019, the respondent requested that the claim be struck out for failure to comply with the orders made on 9 November 2018. The parties were notified that the question of whether the claimant was in breach of the unless order would be considered at the hearing which was postponed from 15 March 2019, on the application of the claimant, and re-listed for hearing on 22 November 2019. My decisions

[51]I will set out, under the heading of each of the issues, the law relevant to that issue, the principal arguments made by the parties and the conclusions I reach in relation to that issue. I deal first with the matter of whether the unless order has been complied with since, if it has not, and if I do not set it aside, the whole claim has already been struck out in accordance with the unless order. Whether the claim is struck out for non-compliance with the unless order The orders

[52]The unless orders made on 9 November 2018 and confirmed in writing and sent to the parties on 27 November 2018 were as follows: “1. The claimant within 21 days, is to provide the respondents and the tribunal with full details of the claim she wishes to make by way of amendment setting out the post it is contended for she had, the comparator she relies on and the type of equal pay claim or claims she is asserting. “2. The difference in pay she contends for between herself and her comparators. Identifying whether this is bonus or some other type of payment and if so, the amount of difference at the time that the claimant contends for.”

[53]A further order stated that these orders must be complied with by 30 November, failing which the claim would be struck out without further order or correspondence in accordance with rule 38 (1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[54]Rule 38 of the Employment Tribunals Rules of Procedure 2013 provide: “An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If the claim or response, or part of it, is dismissed on this basis the tribunal shall give written notice to the parties confirming what has occurred. “A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the tribunal in writing, within 14 days the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the tribunal may determine it on the basis of written representations.”

[55]I was referred to the cases of Marcan Shipping (London) Ltd v Kefalas

[2007] EWCA Civ 463

and Johnson v Oldham Metropolitan Borough Council

UKEAT/0095/13

in relation to compliance with unless orders. In Marcan, Moore- Brick LJ wrote, at paragraph 34: “In my view it should now be clearly recognised that the sanction embodied in an “unless” order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.”

[56]In Johnson, Langstaff P held that: “The phrase used by Pill LJ in Marcan was “… any material respect”: I would emphasise the word “material”. It follows that compliance with an order need not be precise and exact.”

[57]He also wrote, in relation to a case in which what is in issue is better particularisation of a claim or response, that: “What is relevant, i.e. material, in such a case is whether the particulars given, if any are, enable the other party to know the case it has to meet or, it may be, enable the employment tribunal to understand what is being asserted.”

[58]The respondent submitted that the claimant had failed to comply with orders 1 and 2, namely the requirement to fully particularise the “rated as equivalent claim” or to provide full grounds of the proposed amendment in respect of being “cook”. In particular, the respondent argued that the claimant had not identified: 58.1. Whether the claimant is relying on rated as equivalent or equal value; 58.2. The identity of the comparator relied upon; 58.3. The difference in pay.

[59]The respondent argued that the claimant has failed to provide vital details as to the claim she wishes to advance and there has not been material compliance with the orders.

[60]Miss Quigley submitted that Mr McWilliams’ health concerns are a recent factor which does not explain non-compliance. The GP evidence is post compliance.

[61]Mr McWilliams gave evidence that his wife had given him the “bare bones” and he had then typed out the letter of 24 November 2018 and given it to his wife to read before sending it off. He said he was trying to comply with the orders by that letter and that he believed he had done everything he was required to do by the orders. He said he did not give the names of the comparators because he did not know them. The claimant was relying on the original class action and the article he had read about it did not identify the comparators. Mr McWilliams then referred to being a disabled person, referring to various conditions.

[62]In his submissions, Mr McWilliams referred to his ill health and that he was trying to be a “white knight” for his wife. He said that, if legal mistakes were made, it was his fault and related to his ill health.

[63]Mr McWilliams referred to a Supreme Court decision which he said related to the bedroom tax, without giving me a copy of the case or the name of the case or quoting any parts of the judgment. The relevance of this was not clear to me from Mr McWilliams’ explanation, but he appeared to be arguing that it had some implications for what could be expected of him as a disabled person. He told me that the Supreme Court had said that no one was allowed to punish or discriminate against a disabled person where the root is disability.

[64]Mr McWilliams said he tried his best to conform and did not purposely disobey any order of the tribunal. He said he was ill, on two courses of antibiotics, although the GP letter he gave me referred to being prescribed these courses of antibiotics in March and April 2019 i.e. some months after compliance with the unless order was required, and after his letter of 24 November 2018 had been sent in purported compliance with the order.

[65]I have considered what was required by the orders and the contents of the letter dated 24 November 2018.

[66]The letter was received within the required time frame, by 30 November 2018.

[67]Order one required full details of the claim the claimant wished to make by way of amendment setting out the post it is contended for she had, the comparators she relied on and the type of equal pay claim she was asserting.

[68]The letter identifies the claimant’s post as that of cook so it complies with the requirement to set out the post it is contended that she had.

[69]The letter identifies the claim as being one of “work rated as being of equal value”. This does not, in isolation, identify whether the claim is one of “work rated as equivalent” or “work of equal value”, conflating the two. However, read in context, with the references to the claims brought by other cooks, and the Employment Tribunal and Employment Appeal Tribunal cases, I consider it is clear that the claimant wishes to pursue her claim on the basis that the cook claimants in those cases were bringing their claims. It appears to me from the EAT judgment that this was on the basis that jobs had been rated as equivalent. Even if I am not correct in this, the basis of the claims brought by other cooks would be well known to the respondent. Although it does not identify the type of equal pay claim as clearly as would be desirable, I note from the case law that compliance does not have to be precise and exact. I conclude that this information does not fail to comply with what was required to identify the type of equal pay claim asserted in any material respect. The purpose is achieved of enabling the other party to know the case it has to meet and enabling the employment tribunal, albeit by reference back to previous claims by other cooks, if necessary, to understand what is being asserted.

[70]The claimant does not identify by name any comparators. However, I consider that it is clear from the letter that the claimant is seeking to compare herself with the comparators relied on by cooks in the cases heard by the Employment Tribunal and EAT, by the reference to those cases and the reference to “gardeners etc”. I conclude that this does not fail to comply with what was required in any material respect and it served the purpose of enabling the respondent and the tribunal to understand what was being asserted.

[71]I conclude, therefore, that the unless order was complied with in relation to order one.

[72]The second order required the claimant to provide the following: “The difference in pay she contends for between herself and her comparators. Identifying whether this is bonus or some other type of payment and if so, the amount of difference at the time that the claimant contends for.”

[73]The claimant appears to have understood this to relate to the amended claim which she seeks to bring. If this was not the intention of the order (i.e. if it was intended to apply also to the claim brought on the basis of being a driver), I conclude that the claimant placed a reasonable interpretation on the order, resolving any ambiguity in the claimant’s favour. The claimant gave the information that the comparators had a bonus scheme which was 33% to 50% of their wage. I conclude that this does not fail to comply with the order in any material respect.

[74]I conclude that the claimant complied with the unless orders so the claim was not struck out for failure to comply with those orders. The application to amend the claim

[75]The test established in the case of Cocking v Sandhurst (Stationers) Limited

[1974] ICR 650

and revisited in Selkent Bus Company Limited v Moore

[1996] ICR 836

is that the Employment Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The relevant circumstances were said to include: the nature of the amendment, for example, whether it is a relabelling of facts already pleaded or the making of new factual allegations changing the basis of the existing claim; whether it is a minor matter or a substantial alteration pleading a new course of action. Another relevant factor is the applicability of time limits. If it is a new complaint, is that complaint out of time and, if so, should the time limit be extended under the applicable statutory provisions? A further relevant factor is the timing and manner of the application.

[76]Miss Quigley referred me to the EAT decision of Sisters Food Group Ltd v Abraityte

UKEAT/0295/15

. In this case, the claimants sought to amend their equal value claims by changing and/or adding to the roles they carried out themselves. The EAT held that, where a claimant in an existing equal value claim sought to rely on different work she had undertaken during her employment, that gave rise to a different claim from that originally pursued.

[77]Miss Quigley submitted that the proposed amendment to alter the basis of claim from a driver to a cook is an entirely new claim. The basic and fundamental fact of the role undertaken by the claimant was clearly known to the claimant from the outset. She knowingly advanced a positive case based on the fact she was a driver. Miss Quigley referred to the chronology of these proceedings, commenting that history smacks of Mr McWilliams not being an innocent lay litigant. She commented that, when the claim was about to be struck out, he shifted the goalposts. When it was about to be struck out again, he sought to amend the claim.

[78]Miss Quigley submitted that the claim would be 9.5 years out of time. There is no jurisdiction to extend time for an equal pay claim. There was inordinate delay.

[79]Miss Quigley submitted that the respondent has litigated in good faith. If the amendment is allowed, they will be extremely prejudiced in dealing with the case. There is a triable issue as to whether the claimant was a cook or not. The material period for the claim is 2002-2008 but witnesses would need to deal with the transition the claimant says took place to becoming a cook. Witnesses have left the respondent and access to records is limited, post GDPR. The claimant is unable to recall key details. The prejudice is caused directly by the claimant’s actions. The claimant has allowed the respondent to continue and spend money on defending an action which has, on the claimant’s account, been knowingly pursued on a false basis. Miss Quigley submitted that there was a lack of good faith in the way the claimant’s claim has been pursued; the case has been dishonest and vexatious. Mr McWilliams alluded to confusion but this was not a valid explanation for 11 years litigation. The claimant must have known from the beginning that her solicitors had got it wrong. There is no explanation for her lack of action.

[80]Miss Quigley submitted that it would be contrary to the overriding objective to allow the application to amend.

[81]Mr McWilliams objected to the suggestion, put to him in cross examination, that they had switched track when they realised the claimant had no claim based on being a driver/vendor supervisor. He described this as a “cynical remark”.

[82]In his submissions on this point, Mr McWilliams said that the claimant was a cook and it was only justice for the legal system to reflect reality. He said that, if there was any mistake in the paperwork, it was not his wife’s fault but his fault. He submitted that it was illegal, after what the Supreme Court had said, to punish him for being disabled.

[83]In his reply to Miss Quigley’s submissions, Mr McWilliams said he was confused, not making a false claim. He said HR’s mistake was a “poisoned well”; if the claimant had had a contract of employment, they would not have had all this and would not have needed to put in Freedom of Information requests.

[84]The claimant gave evidence that she became a driver/vending supervisor in 1991 but became a cook in 1995.

[85]Mr McWilliams gave evidence that his wife was a cook 99% of the time, and helped out with driving 1% of the time. He agreed that his wife knew, from 1995, that at least 99% of the time she was a cook.

[86]The claimant’s correspondence with the respondent has been inconsistent as to whether she says she was a cook or a driver. On 11 December 2012, the claimant wrote to the respondent, stating that she was a cook at the time she retired. In a letter dated 6 August 2018 to the respondent, she wrote that she was a driver.

[87]Whether she was a cook from 1995 will be a live issue if the amendment is allowed and, as I indicated at the start of the hearing would be the case, I make no finding as to whether or not she was a cook. The respondent accepts there is a triable issue as to whether the claimant was a cook. If she was a cook, her job role was incorrectly recorded by the respondent as still being that of a driver.

[88]Whatever the factual reality of her position, the claimant allowed a claim to be put in on her behalf describing her as a cook in January 2008. She did not herself, or through her husband, inform the tribunal before August 2018 that she had not been a driver, but was a cook. Indeed, Mr McWilliams discussed the basis of the claimant’s case with Employment Judge Horne in November 2017 and January 2018, putting her case on the basis that she was a driver (November 2018) then driver/vending supervisor (January 2018) and making no suggestion that this was an incorrect description of the claimant’s role. The first mention in the tribunal proceedings that the claimant had been a cook and now wanted to pursue her claim on that basis came in a preliminary hearing before Employment Judge Feeney in August 2018.

[89]If the claimant was a cook from 1995, she has knowingly pursued, or allowed her case to be pursued, on an incorrect basis from 2008 until 2018. Mr McWilliams, when it was put to him in cross examination that they had pursued the claim on a false premise, replied that this was a false premise created by HR. This does not provide an explanation as to why the claimant and he, on behalf of the claimant, pursued a claim for so long on a basis which they now say they knew to be incorrect from the start of proceedings. i.e. that she was a driver or driver/vendor supervisor.

[90]There has been no satisfactory explanation from the claimant or Mr McWilliams as to why the claimant’s claim has been pursued on the basis that she was a driver or driver/vending supervisor, for such a long time without being corrected, if the claimant was, in fact, a cook.

[91]If the claimant was not a cook, then the basis of this application to amend is incorrect.

[92]In the period that Mr McWilliams has been acting as her representative, he has been acting with the consent of the claimant. His actions must be attributed to the claimant.

[93]I conclude that either the claimant knowingly pursued the case on a false basis from 2008 until 2018 or she is now making an application to amend the claim on a false basis. Whichever is the case, I conclude that the claimant has not been, or is not now, acting in good faith in pursuing her claim. This is a strong factor towards concluding that it would not be in accordance with the overriding objective to deal with cases fairly and justly to allow the amendment application and a strong factor against the claimant in the balancing exercise I have to carry out of balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. There can be little, if any, injustice and hardship to the claimant in allowing her either to amend her claim to pursue a claim on a false basis or to allow her to correct a claim which she has knowingly been pursuing on a false basis for more than 11 years.

[94]I now consider the particular factors identified in Selkent.

[95]I consider first the nature of the amendment. This is a very substantial change which is being sought. It changes the whole basis of the equal pay claim. Rather than identifying herself as a driver or driver/vending supervisor and comparing herself with a driver employed on work rated as equivalent, the claimant now wishes to identify herself as a cook and compare herself with men working in other roles, such as gardeners. This is a completely new claim.

[96]I consider now the applicability of time limits. As noted above, this is a completely new claim. If it had been presented at a claim when the application was made (by the letter received by the tribunal on 26 November 2018 or, at the earliest, an oral application made at the preliminary hearing on 3 August 2018), it would have been more than 9 years out of time. The claimant retired in September 2008 and a claim would have had to be presented within 6 months of the end of her employment. There are no “just and equitable” or “not reasonably practicable” extensions available to time limits in equal pay cases.

[97]I have referred already to matters which would come under the heading of the timing and manner of the application.

[98]In terms of injustice and hardship to the respondent, I accept the submissions made by Miss Quigley about the likely prejudice to the respondent of having to deal with a completely new claim so long after the relevant events. In addition to the particular matters mentioned by Miss Quigley, I take into account that the respondent would not have had any reason to expect to deal with another equal value case brought by a cook, so long after the claims brought by those identified as cooks in the proceedings begun in 2008 had been concluded. After the Tribunal and EAT decisions in 2009 and 2011, these claims settled.

[99]I conclude that the injustice and hardship to the respondent of allowing the amendment would be very serious. I conclude that there would be little, if any, injustice and hardship to the claimant in not allowing the amendment for the reasons given above.

[100]I have, since the hearing, researched the case to which I believe Mr McWilliams was referring, which is RR v Secretary of State for Work and Pensions

[2019] UKSC 52

. I do not consider that the case is authority for the proposition he puts forward. However, regardless of that, in making this decision, I am not “punishing” Mr McWilliams for being disabled. I do not consider his disability has any relevance to the matters which have led me to refuse the application to amend the claim. The application to strike out the existing claim on the basis it has no reasonable prospect of success

[101]Rule 37 of the Employment Tribunals Rules of Procedure 2013 set out grounds on which a Tribunal may strike out a claim. These include that the claim has no

[102]For an equal pay claim, a comparator of the opposite sex must be identified. For a claim pursued on the basis of work rated as equivalent, this must be someone employed on work rated as equivalent who was paid a higher rate of pay.

[103]Miss Quigley noted that the claimant had accepted that there was no valid claim based on a claim as a driver. She submitted that there was no comparator and no Enderby type discrimination.

[104]In his submissions, Mr McWilliams, repeated what he had said in evidence, that the driver claim was “dead in the water” and confirmed that, whether or not the amendment was allowed, the claim based on being a driver had no prospect of success.

[105]Mr McWilliams accepted in evidence that there was no arguable claim based on being a driver/vending supervisor. He said that, as soon as they realised other drivers were not successful in their claims, this claim was “dead in the water”.

[106]Mr McWilliams, on behalf of the claimant, has confirmed in his submissions that the claim based on being a driver had no prospect of success.

[107]On the basis of the evidence and submissions, it is common ground that the existing claim has no reasonable prospect of success and I conclude that I can strike it out on these grounds on this basis alone.

[108]Had I had to consider the merits of the existing complaint further, I would have struck it out as having no reasonable prospect of success. The claimant has not identified a male comparator employed on work rated as equivalent to that of driver/vending supervisor and paid at a higher rate despite a lengthy period to try to find such a comparator. I agree with Miss Quigley’s submission that there is no reason to speculate that a comparator would be identified. Without such a comparator, the claim could not succeed.

[109]I strike out the claim as having no reasonable prospect of success.