Mrs B Pearson and Others v Cumbria County Council: 2504691/2013
JUDGMENT
The claimant’s equal pay claim in respect of the comparator Simon Airey, a planning technician, is struck out as having no reasonable prospects of success. ORDERS Made pursuant to the Employment Tribunal Rules 2013 If the respondent wishes to pursue any application to strike out any of the other cohort of teaching assistants including teaching assistants without professional educational needs, teaching assistants with special educational needs, senior teaching assistants without special educational needs, senior teaching assistants with special educational needs and higher level teaching assistants, it must, having served notice upon each such claimant in compliance with rule 37(2), and attaching a copy of schedule 1 to the further amended grounds of resistance to be found at pages 33-36 of the joint bundle for the Pearson hearing, and a copy of this judgment and reasons, send the application to the Tribunal within 28 days of the date upon which this judgment is sent to the parties.REASONS
[1]This hearing was listed to consider an application to strike out Mrs Pearson’s equal pay claim in respect of the comparator Mr Airey, a planning technician, as having no reasonable prospects of success, or alternatively for a deposit order upon the ground that it had little reasonable prospects of success. It is a test case which is likely to apply to other employees who are teaching assistants who are also unrepresented.[2]In simple terms a claimant for equal pay has to prove the following:-2.1 A claim made within time That is within 6 months of the date upon which the employment in respect of which the claim is made has ended. That is satisfied in the claimant’s case because, although for unexplained reasons, her claim and that of the other teaching assistants was not presented to the Employment Tribunal by Thompsons until 25 July 2013, when other claims had been presented from 2004 onwards, Mrs Pearson’s employment with the respondent as a senior teaching assistant with special educational needs is still continuing.2.2 The claimant must identify the job of a comparator or comparators of the opposite sex who is or was in common employment with the claimant, ie with the same employer. Problems have arisen in this connection with which we will deal in paragraph 4 below.2.3 That comparator’s job must either be like work with the claimant’s job (ie substantially the same job); or rated as equivalent under a job evaluation study rated as equivalent; or if not, at least of equal value with the comparator’s job as found by an Independent Expert following an examination of detailed job descriptions in terms of the demands made on the claimant “by reference to factors such as effort, skill and decision making” (see section 65(6) of the Equality Act 2010 and equivalent provisions in the Equal Pay Act 1070). For more details of this see paragraph 5 below but broadly speaking, this claimant’s job has at least from 2011 been treated as an equal value claim on the basis that her job was entirely different from Airey’s job and had not been treated as having been rated as equal under a job evaluation study, this despite the respondent’s now claim that both jobs had been so rated, prior to the single status agreement which came into force in this local authority on 1 October 2011, under a Hay evaluation scheme. For the purposes of this hearing we assumed that the claimant will prove each of the above requirements.2.4 Pay The claimant has to establish that her pay was, during the comparison period, lower than the comparator’s pay. The most common type of pay is basic pay, namely that element of pay, payable weekly or monthly on the basis of an hourly rate, or an annual salary, for turning up and doing the job. However there are commonly other additional sources of pay than basic pay, dealt with in a separate term in the contract. In the claimant’s case, from 2002 to 2011, she has, without a break, been paid on an annual basis payable monthly an SEN allowance to reflect her expertise in dealing with children with SEN. She was entitled to receive it; and did receive it because it is accepted that she worked with such a child or children for over 50% of her contract hours which were from 2002 to 2011, 32.5 hours per week; and from 1 October 2011, under the single status agreement, 35 hours per week, although from that date her entitlement to an SEN allowance ceased. The employer is not entitled to set off against the basic pay of a claimant if it be lower than her comparator, the higher pay which she may receive for any enhancement ie any other element of pay which is not basic pay which she receives, but the comparator does not. This may result in a claimant, if successful in her equal pay claim, ending up with a total pay package higher than the comparator. The source of this principle of a comparison of separate pay terms is Hayward v Cammell Laird Shipbuilders Limited [1988] IRLR paragraph 257 (Supreme Court):- “If a contract contains provisions relating to –(1) basic pay,(2) benefits in kind such as the use of a car,(3) cash bonuses, and(4) sickness benefits it would never occur to me to lump all of these together as one term of the contract simply because they can altogether be considered as providing for the total remuneration for the services to be performed under the contract. In truth, these would include a number of different terms; and in my opinion it does unacceptable violence to the words of the statute to construe the word term in subparagraph (2) as embracing collectively all these different terms … We look at the two contracts, you ask yourself the commonsense question – is there is each contract a term of a similar kind ie a term making a comparable provision for the same subject matter; if there is, then you compare the two, and if on that comparison, the terms of the woman’s contract proves to be less favourable than the terms of the man’s contract, then the term in the woman’s contract is to be treated as modified so as to make it not less favourable”. In the circumstances in Hayward the claimant and comparators had different rates of basic pay and different overtime rates. The employer was not entitled to rely upon other terms of the contract dealing with paid meal breaks, holidays and sickness benefits which favoured the claimant in order to make up the difference in the basic pay and overtime rates. By contrast, in Degnan v Redcar & Cleveland Borough Council [2005] IRLR the EAT in the Court of Appeal overturned an Employment Tribunal decision that the attendance allowance paid to one comparator (and not to the claimant) formed part of the same subject matter as the basic pay and 40% bonus paid to another comparator so that the claimant was entitled to both, ending up with substantially more pay than either comparator. We have unanimously decided that the claimant’s entitlement to her SEN allowance is a term dealing with a separate subject matter than basic pay. It rewarded the claimant for her greater expertise and responsibility in dealing with SEN children; it was not payable according to the number of hours worked with such children and although this did not occur it was not payable if she was not working with such children. Accordingly the comparison is to be made between the basic pay of the claimant and Mr Airey. In fact however the difference does not make any material difference to the outcome of this application. We further find that Mr Airey was not paid any enhancements during the relevant comparison period. His only source of pay was his basic salary payable monthly. Although the claimant has cast doubt upon that claim, we are satisfied from the documents at pages 128-132, the payroll information for the comparator for the period 2001 to 31 March 2005 (when he TUPE’d out to Amey), that the comparator’s only source of income was his basic salary; and also that the was not paid anything than his salary at the time when he TUPE’d back in on 1 April 2012 (see page 171). We will set out further findings on the topic of pay in paragraph 5 below. The respondent claims that throughout the comparison period the claimant earned marginally more than the comparator when compared on an hourly rate basis. The claimant contends that that is not the proper method of comparison.2.5 If the claimant establishes all of the preceding matters; claim in time, comparator in common employment with the claimant, equality of work; inequality of pay (lower than the comparator), the burden of proof shifts to the respondent to prove that the reason for the difference in pay had nothing to do with sex or sex discrimination, either direct or indirect. An example of direct sex discrimination occurs where an employer chooses to pay a bonus based on basic pay to male dominated work groups but not to female dominated work groups whose jobs could be the subject of a similar bonus, without any reason, or for a reason which ceases to exist. This form of justification cannot be justified. Indirect discrimination occurs where the employer has a pay policy which in practice can be shown to advantage male groups compared to female dominated groups but is not direct discrimination. It is often detected statistically (tainting by numbers). This form of discrimination can in certain circumstances be justified by an employer. That completes an outline of what must be established for a claimant to succeed in an equal pay claim.[3]At this stage of the proceedings the respondent has raised a preliminary point that the claimant has no reasonable prospects of succeeding in her equal pay claim:-3.1 Because she cannot show that she was paid less than Airey during the comparison period.3.2 Even if the hourly rate comparison of their pay is not appropriate, and pay inequality can be shown, it has nothing to do with the difference of sex either direct or indirect.[4]The choice of comparator It is up to the claimant (or more properly in the case of these claimants the claimant’s former trade union solicitors) to identify the job of the comparator to be relied upon. As was recognised in Prest v Mouchel Business Services Limited [2011] ICR page 1345, it is not required that the name of an actual comparator is identified but the job must be identified. In orders sent out in March 2016 I sent out an explanatory note about this process. It appears from information dating from 2011 provided by the Independent Expert to the Tribunal in 2016 that, as of 2011, the job of a planning technician (Airey’s job) had been selected by Thompsons for the teaching assistants and at that time the process was in place for preparing the job description. It came to a halt when the parties’ representatives agreed a process to settle outstanding claims. Section 132 of the Equality Act provides that the period of comparison for the purposes of the Equal Pay Claim commences six years prior to the commencement of the proceedings themselves or the date of the first identification of the comparator job if it is not identified in the original claim. This period is known as the arrears period. However for reasons that have not been explained by Thompsons, who came off record as acting for these claimants in 2014, despite numerous requests for information by these claimants, nor has it been explained by the respondent, it has never been positively identified when the planning technician’s job was identified for the purposes of these proceedings. It is however noteworthy that in further amended grounds of resistance settled by counsel and dated 28 November 2010 the respondent acknowledged that a planning technician was in the cohort of comparators’ jobs for this group of claimants along with seven other jobs which are included in the Armistead schedule. A further complication is that, again for wholly unexplained reasons, Thompsons did not issue proceedings in respect of the teaching assistant claims until 25 July 2013, under that lead name of Sheila Armistead. It may be that the fact that no proceedings has actually been commenced in 2010 or 2011 in respect of these claimants had been overlooked by Thompsons, but that is mere speculation. A further unexplained aspect of this case is that the Armistead claim had attached to it a schedule identifying no less than 19 jobs for comparators, from, for example, cemetery and crematorium operatives to red book craft workers, but did not identify a planning technician (in the Highways Department). Mr Sweeney has thus asserted that the planning technician comparator has never been identified by these claimants, although he concedes that the Tribunal would be entitled to find that an application was made to identify the planning technician as a comparator, for example as at the case management hearing on 7 June 2016. If that be the case, the arrears period can only go back to 2010. If the identification date is to be interpreted as being 25 July 2013, the arrears date is 25 July 2007. Two questions remain in this connection:-4.1 How did the planning technician come to be selected in 2011? It is not possible for the Tribunal to answer this question on the information available at this stage. It may be appropriate for the Tribunal to order Thompsons to provide the information. What we can do however is to assess the pay differences and the prospects of success for the full possible period of the claim.4.2 The second question is: if the panning technician was not identified, can the claimants rely upon any of the 19 comparators’ jobs identified in the schedule to the Armistead claim form? It may be the case however that none of those comparators received higher “pay” than the claimants in the relevant period. That may be a matter for further investigation.[5]We now deal with the central issue as to the appropriate pay comparison between the claimant’s pay and that of the comparator. Mrs Pearson’s employment commenced on 15 October 2001. Her job was a former purple book job. We know that at least from 2002 she was paid an SEN allowance. In 1997 the pay scales for local authority purple book (APT and C jobs) and white book (manual jobs) were amalgamated under the green book. The planning technician’s job was also a purple book job. His job had commenced on 1 September 1999 when he was on SCP25 (see pages 97-98). (It is said that both the claimant’s job and his job were in fact at one stage rated under a Hay evaluation scheme but we ignore that for the purposes of this hearing). Mr Airey’s job in the Highways Department of the respondent was TUPE’d out to Amey Construction on 1 April 2005. As from that date his pay award with the council would have been £21,654 on SCP28 but as of 31 March 2005 it was at £21,033. That remains the appropriate figure for the purposes of the comparison with the claimant’s pay after that date, although Airey received pay increases from Amey after that date. It is well established that a comparison cannot continue to be made if the comparator has moved out of common employment with the claimant (or if he moves into a different job with the common employer, unless it also remains of equal value to the claimant’s job). The reason for this is that the original employer is no longer responsible for the pay received by the comparator. The authority for this proposition is Sorbie v Trusthouses Forte Hotels Limited [1977] ICR page 55. To put it another way the claimant is not entitled to track Airey’s pay after 31 March 2005. A complicating factor is that Mr Airey transferred back into the employment of the respondent from 1 April 2012. In theory that would permit the claimant to compare her pay with his pay after that date, but the respondent’s case is that by that time he had been promoted to a senior planning technician’s post on a yet higher scale, which is a job most unlikely to be of equal value to the claimant’s. Although the claimant is sceptical about the circumstances of the promotion, no evidence of the circumstances having been disclosed by Amey, the respondent has produced its first payslip for Airey for the months to 30 April 2012, which corroborates the promotion. A further relevant change occurred in the claimant’s pay in terms on the establishment of the single status agreement in her case with effect from 1 October 2011. The claimant’s job was evaluated at SCP16-17 so that her pay grade did not change. However prior to that date she had only worked 32.5 hours per week for 39 weeks of the year to earn the full time salary. After that date, the requirement was to work 37 hours per week for 44.543 weeks work per year (taking into account school opening times and holidays) in order to obtain full pay whereas she was only offered an increase in hours to 37 hours per week. In consequence of a reduction in pay the claimant was however entitled to pay protection for one year to 30 September 2012. In addition, the claimant lost her SEN allowance. It is also to be noted that the planning technician’s job did not exist in the respondent at that time and was not evaluated under single status, however it may be that there is another comparator available in that post a Mr Davis although it has not been made clear how the job was evaluated or indeed whether it was evaluated under single status. Sheena Benson, a senior advisor in the respondent’s HR Department, has provided a detailed witness statement setting out the methodology for comparing the hourly rates of pay of the claimant between 2007/08 to 2013/14 with that of Airey with his pay frozen at the annual salary as at 31 March 2005 (as explained above). The initial calculation took into account the claimant’s basic pay at SCP17 and then, from 1 October 2012, after a review of her teaching assistant post to SCP23 (when her weekly hours also increased to 35 – see page 127. The respondent submits that in order to reach an hourly rate comparison the following calculation has to be done (see paragraph 20 of the skeleton argument):- “(1) Ascertain the number of weekly working hours for the claimant and comparator. (2) Ascertain what monetary payments are made for working those normal working hours. (3) Aggregate the payments. (4) Divide the total by the number of hours in the working week to give the hourly rate. (5) Compare the outcomes. Based on that method, Mrs Benson performed a comparison between Ms Benson’s pay and Airey’s pay as set out in the schedule attached to her statement. We are satisfied that it is mathematically correct. In addition, we received during the hearing a revised schedule which also calculated the hourly rate excluding Mrs Pearson’s SEN allowance paid from 2007/08 to 30 September 2011 (when it was abolished). The revised schedule is attached to this judgment marked SB1. In summary, throughout the entire period from 2008 to 2014 Airey’s pay, for the purposes of the comparison, remains frozen as form his pay on the last day he worked for the respondent on 31 March 2005 at an hourly rate of £12.76. Whether Mrs Pearson’s SEN allowance has taken into account or excluded, her hourly rate exceeds that of Airey save that in 2012/13 the hourly rate is the same, and in 2013/14 the hourly rate of the claimant is 32 pence per hour less. Mrs Pearson’s argument is that the hourly rate comparison is inappropriate. They were not paid at an hourly rate but at an annual salary and another schedule showing pay awards from 1/4/05 onwards for SCP28 (Airey’s pay was however frozen at the SCP28 rate from 1 April 2004 to 31 March 2005) and for the claimant at SCP17 initially and then SCP23, shows a significant difference. This is of course explained in part by the fact that Airey worked longer hours per week on more weeks a year. In this connection Mr Sweeney referred us to the decision of the then House of Lords (now the Supreme Court) in Leverton v Clwyd County Council [1998] ICR page 33. There are significant factual similarities between that case and the present case. The applicant was a nursery nurse employed by the County Council who worked similar school hours to the claimant. She based her claim upon the disparity between her salary and that of eleven male clerical officers employed by the County Council. The applicant enjoyed shorter working hours and longer holidays than the comparators. The Employment Tribunal had held that the local authority had established a defence under section 1(3) (the material factor defence now found in section 69 of the Equality Act 2010) in that the variation in pay between that received by the claimant and that received by the comparators under their respective contracts was due to the difference in working hours and length of holidays which constituted a material factor other than the difference of sex. They dismissed the appeal on another ground relevant to the present case. The applicant appealed. The Court of Appeal affirmed the decision on the other issue but held by the majority that the local authority had established the material factor defence. The claimant then appealed to the House of Lords which upheld the finding that the employers had established the material factor defence on the basis that the difference in pay between the claimant and the comparators was genuine due to a material factor which was not the difference of sex. We have been referred to various passages in the judgments of Lord Justice May in the Court of Appeal, and of Lord Bridge in the House of Lords. The following propositions can be derived in summary:-(1) As to the hourly rate comparison the Court of Appeal upheld the Employment Tribunal’s decision that such a comparison was unrealistic and not appropriate (see page 16, paragraph 4).(2) In the Court of Appeal and in the House of Lords, however, both unanimously held that the EAT had been wrong to overturn the Employment Tribunal’s finding that the hourly rate comparison was capable of constituting a material factor defence – see in particular the judgment of Lord Bridge at page 23:- “I must now turn to examine in more detail the facts on which the material factor defence depends. I have already referred to the notional calculation put forward by the respondents to compare the appellant’s salary with that of the comparator’s on an hourly rate basis. It is not wholly clear whether the respondents were advancing this in support of a defence that the terms of the appellant’s contract were not less favourable than those of the comparator’s. If so the Industrial Tribunal rightly rejected it as misconceived anticipating the decision of your Lordship’s House in Hayward v Cammell Laird Shipbuilders No 2. But the decision records that, if the method of approach involved in this comparison were proper, the Industrial Tribunal would regard the respondent’s point as well made. It adds later that the comparison was viewed by the majority as casting light on the broader merits of the case. The majority must have had this comparison in mind, as they were entitled to, when considering the material factor defence”. See also at pages 24-25:- “A (Employment Tribunal) set out their conclusion in the following terms:- ‘The majority of the tribunal is satisfied at this stage on the evidence that we have heard that the different contractual terms on hours and holidays are a genuine material factor which make it reasonably necessary for the respondents to impose pay differentials between the applicant and the relevant comparators. We at this stage would dismiss the application upon the basis that the respondents have fully established that material factor defence’. Looking no further, I should conclude that this was a finding of fact which was amply justified by the evidence as a whole, but perhaps particularly by the comparison putting the rates of pay and hours worked. Where a woman’s and a man’s regular annual working hours, unaffected by any significant additional hours of work, can be translated into a notional hourly rate which yields no significant difference, it is surely a legitimate if not a necessary inference that the difference in their annual salaries is both due to and justified by the difference in the hours they work in the course of a year and has nothing to do with the difference in sex”. In the present case, we have had regard to the fact that the basic salary was the only source of Airey’s pay – he had no enhancements such as a sham bonus or attendance allowance. Some of the white book comparators had. Furthermore his job was unique. It was not a job in which there were a significant number of employees who were predominantly male. We are satisfied in these circumstances that both in terms of the calculation and in terms of the reason for the difference in the annual salary the claimant has no reasonable prospects of success in respect of this comparator. EMPLOYMENT JUDGE HARGROVE[1]This hearing deals with complex issues relating to the identification of the comparator(s) job(s) for each of the 25 remaining unrepresented claimants who are within the cohort of Teaching Assistants with or without special needs in this sub multiple of equal pay claims which dates from 2004 onwards. Thompsons came off record as acting for them as from a date shortly before 10 September 2013, when the Employment Tribunal wrote to the claimants enquiring as to their intentions. All of the current list of claimants expressed an interest in continuing. There have however been difficulties in identifying from the claim forms and the history of the litigation the comparators’ jobs to be relied upon, and the matter has only been in part at least clarified with input from Mr Pull, solicitor of Thompsons, who took part in a recent telephone hearing notwithstanding that his firm has been off record for nearly four years.[2]We are grateful to Mrs Pearson who, as well as being a claimant acting on her own behalf, has agreed to act as representative for the other claimants some of whom also attended this hearing. This has involved her in taking instructions from the claimants and communicating with them on behalf of the Tribunal and the respondent.[3]The essential issues with which we had to deal at this hearing were:-3.1 What was each claimant’s job title under which she brings or seeks to bring her claim?3.2 What is or are the comparator(s) job(s) upon which each claimant now seeks to rely?3.3 Is it necessary for any claimant to apply to amend to change or to add to any existing comparator?3.4 If yes, should that application be allowed or refused; and if allowed what effect does it have upon the arrears period?3.5 Should any claim be struck out as having no reasonable prospects of success?[4]We start with identifying the claimants’ job titles in order of seniority:-4.1 Higher Level Teaching Assistants (HLTA) These claimants are identified as Chambers and Townson. In an ET1 submitted on 8 June 2011 the claimant Chambers identified as her comparators a Highways Maintenance Team Leader (HMTL); a Buyer and a Planning Technician (see pages 346-347). Similar comparators’ jobs were identified by the claimant Townson in an ET1 submitted to the Tribunal on 24 March 2011. That ET1 is not within the trial bundle but the Tribunal has a copy.4.2 STAs without SEN Those currently identified are Starkie, Finlay and Holliday. By a claim form submitted by Starkie on 21 February 2008 at pages 196-209, she identified as her comparators a Painter and Assistant Buyer – see page 207 in particular. The claimants Finlay and Holliday submitted their claims on 29 March 2012 (see pages 350-361). At page 361 there is a list of eleven comparators’ jobs of which numbers 7 and 8, Assistant Buyer and Painter, are highlighted.4.3 STAs with SEN The claimants Field, Hoyle and McGill, in an ET1 submitted to the Tribunal on 9 April 2008 identified as their single comparator a Planning Technician (see page 226). The claimant Beecroft in an ET1 received on 2 April 2009 also identified only one comparator, a Planning Technician (see page 288). Likewise the claimant Walton who submitted a claim in July 2009 (see page 299). The claimants Townson and Chambers who had submitted claims in respect of their employment as HLTAs, had also submitted earlier claims as STAs with SEN and had identified in respect of the STA job only a Planning Technician. It is to be noted in respect of this group, a public preliminary hearing was listed as a test case with Mrs Pearson nominated as the lead claimant. She was also a STA with SEN, but she did not present a claim (or a claim was only submitted on her behalf) until July 2013 and different considerations applied to her in respect of her comparators. In the test case, Mrs Pearson’s claim was being considered only in the context of the single comparator who was a Planning Technician, Mr Airey. Her claim was struck out in respect of that comparator in a judgment sent to the parties on 5 May 2017 (see pages 1-10 of the bundle). The judgment in that case will bind all of the claimants who rely upon Simon Airey, the Planning Technician, as a comparator, at least in respect of that comparator.4.4 STAs with SEN (post 23 February 2012) These are the following:- Pearson – 2504691/2013 Balance – 2504578/2013 Harper – 2504636/2013 Heaney – 2504641/2013 Norman – 2504686/2013. These claims were all submitted as part of the Armistead sub multiple on 25 July 2013. This ET1 is to be found at pages 370-389 of the bundle. Attached to it, page 388, is a schedule of comparators containing at least 26 job titles. Amongst the job titles were, at number 7, Road Workers 1-3, at number 12, Painter and at number 15, Street Mason. It is of significance that there has been no explanation from Thompsons as to why such a large list of comparators’ jobs should have been identified. At least a partial explanation is, however, that the large number of claimants (at least 113 in total) included claimants in a wide variety of jobs including Teaching Assistants; and it must have been considered desirable accordingly to identify at the initial stage at least a wide range of potential comparators’ jobs.4.5 Teaching Assistants These include Armstrong whose claim was submitted on 23 May 2008 (see page 239) and whose claim form (at page 242) included Assistant Buyer. The same identification was made by the claimant Walton in 2008 (see page 257), Shanklin on 2 April 2009 (see page 272), McMillen (see page 312) and Balance, who was one of the Armistead claimants in respect of whom in the list of 26, number 25 identified Assistant Buyer (see page 388). That completes the list of remaining unrepresented claimants and their jobs and details of the ET1s.[5]The principles relevant to the consideration of the issues in the present case The Employment Tribunal needs to refer to certain principles which have been applied for the identification of comparators in equal pay claims, some of them deriving from authority (EAT and above) and some through a practice adopted in local authority and NHS equal pay multiples by the Newcastle Tribunal since at least 2005, the Newcastle Tribunal having responsibility for at least 14 local authority multiples and all of the NHS equal pay multiples in England and Wales, and these principles which we have applied consistently have not been the subject as yet of any appeal:-5.1 It is not necessary to identify either a claimant’s job or a comparator’s job at the stage of presenting a claim to the Tribunal, provided the cause of action ie equal pay is identified. It is sufficient to identify a claimant by name and her employer by name. This principle derives support from the EAT cases of Prest v Mouchel Business Services Limited [2011] ICR page 1345 and Two Sisters Food Group Limited v Abraityte & Others EAT0209/15. It is not uncommon for some comparators’ jobs to be identified but for claimants also to seek pay information from an employer in order to confirm the identity of the job and the name of the comparator or to identify other comparators. In these circumstances the Newcastle Employment Tribunal adopted the practice of allowing time for the claimant, usually by her representative, to nominate a comparator or comparators usually limited to three. At this stage the identity of the comparators to be relied upon crystalises. In this event, the Tribunal treats the nomination as taking effect from the date when the original ET1 was submitted. This identifies the date for the purposes of calculating the arrears period which, under section 132 of the Equality Act, is a date no more than six years before the claim was presented and applies if the claimant has been in employment in that job throughout that period. It is accepted however that the doctrine of non relation back applies in circumstances where after the original nomination of a comparator, any application is made by a claimant to change or to add to the comparators, if the new comparators are in a different jobs to the original comparators. (If the application is to change only the name of a comparator in the same job, it is however not a new cause of action. See Prest above ) If any application to amend to change a comparator’s job is allowed, for the purposes of time and arrears points, the relevant date is the date of the application to amend. The arrears period does not date back from the original ET1 date and if the application is made more than six months after the claimant has ceased to be in the employment of the employer, or in the employment in respect of which she brings the claim, then the application will be made out of time. It is to be noted that in these cases, claims were originally presented by this group of claimants from 2008 right up to 2013. A second factor relevant to the arrears period is the coming into force of the single status agreement within this local authority on 1 October 2011. That date is of significance because it marks the end date up to which the arrears period will apply. No claims have been pursued for equal pay against this local authority as yet in respect of any period after 1 October 2011. By way of example, the Armistead sub multiple of claims was presented to the Tribunal on 25 July 2013. The period of claim in issue is thus 25 July 2007 to 1 October 2011.5.2 Applying these principles to the present claims, we had to identify the date and circumstances when these groups of Teaching Assistant claimants first nominated comparators (or more accurately, had their comparators nominated for them by their representative, Thompsons). In this connection a most significant event took place on 23 February 2012. On that date Mr Pull of Thompsons e-mailed the respondent (see pages 72-76 of the bundle) identifying, and in our view nominating, comparators for each of the jobs within the Teaching Assistant group:-(a) in respect of HLTAs the nominated comparators were Fielding (Highway Maintenance Team Leader), Stephen West (Buyer) and Simon Airey (Planning Technician);(b) in respect of the Senior Teaching Assistants (STAs) not receiving SEN the nominated comparators were Molloy (Painter) and Crosby (Assistant Buyer);(c) in respect of the Senior Teaching Assistants (STAs) receiving SEN allowance the only comparator identified was Simon Airey (Planning Technician);(d) in respect of the Teaching Assistants (TAs) not receiving SEN the comparators were Clements (Highways Maintenance Team Operative) and Crosbie (Assistant Buyer);(e) in respect of the TAs receiving SEN the nominated comparator was Crosbie (Assistant Buyer). This nomination, we find, was the first nomination of comparators in respect of all claimants in those jobs who had prior to 23 February 2012 presented claims to the Tribunal and such nominations dated back to the date of each of the claimants’ ET1s. There are however two sets of claims which were made after that date. The first set were the claims presented by the claimants Holliday and Finlay on 29 March 2012. Their claim form also included claims by nine other claimants in an assortment of jobs and, as stated above, page 361 contained a list of eleven potential comparators including an Assistant Buyer and a Painter. In respect of these claimants there was a specific e-mail sent by Mr Pull of Thompsons on 30 March 2012, the day after the ET1 was presented, which was copied to the respondent and to the Independent Experts, and which reveals that these two claimants were to rely upon the Painter Molloy and the Assistant Buyer Crosbie. We interpret the ET1 and the e-mail combined as being the nomination by those two claimants of those two comparators’ jobs. Indeed, the identification led to the commencement of the process of preparing job descriptions in respect of the claimants’ lead and the two comparators, which however came to a halt when it was agreed later in 2011 that the parties would enter into settlement negotiations. That leaves outstanding the second group of claims presented in the Armistead sub multiple on 25 July 2013 and which includes Pearson and four others whose claims are still outstanding. The respondent submits, notwithstanding that these claims were presented to the Tribunal after the nominations described above,that the claimants are nonetheless bound by those earlier nominations made before they presented their claims. There is however no correspondence or other information to confirm that a litigation decision was made on their behalf by Thompsons before Thompsons came off record as acting for these claimants on or about 10 September 2013, only six weeks after the Armistead claims were presented. Furthermore, the list of 26 or more jobs contained in the schedule of comparators attached to the Armistead claims is not consistent with the nominations by Thompsons in the e-mail of 23 February, in which the only comparator identified for STAs receiving SEN was the Planning Technician Airey. Airey’s job does not appear on the comparator list (page 388). What does appear on the list however are the three jobs upon which this group of claimants, the other STAs, and the HLTAs now seek to rely. So much was confirmed by Mrs Pearson in an e-mail to the respondent copied to the Tribunal dated 27 July at 14:05, and at this hearing.[6]With these matters in mind we summarise our conclusions in relation to each jobholder:-6.1 Claimants who bring claims as HLTAs (Chambers and Townson) may rely upon the two comparators nominated by Thompsons on 23 February 2012 being an HMTL (Fielding) and the Buyer (West), and their claims date back from the date of their ET1s in 2011 for six years up to the date of the single status agreement, 1 October 2011. However, their claims in reliance upon the Planning Technician (Airey) are struck out as having no reasonable prospects of success on the basis set out in the Pearson judgment. A word of caution is to be noted however in that these two claimants had made other claims, in the case of Thompson – claim number 2501562/2010, and in the case of the claimant Chambers, two others in 2011 which appear to be claims in respect of possibly earlier employments as an STA with SEN. This suggests that their claims as an HLTA may be or have been for a limited period which requires clarification to the Tribunal.6.2 The claimants who were/are STAs with SEN and whose claims were presented before 23 February 2012 These are Field, Hoyle, McGill, Beecroft, Walton, Townson and Chambers (in respect of their claims as STAs). Their claims are struck out for the following reasons:- First, their only nominated comparator was Airey (Planning Technician), and such claims have no reasonable prospects of success for reasons explained in the Pearson judgment. Their application to add or change comparators, finally confirmed in Mrs Pearson’s e-mail of 27 July 2017 is refused upon the basis that it is an amendment to add a new cause of action under the principle recognised in Prest v Mouchel, which takes effect from the date of the application, not the date of the original ET1. The arrears date would accordingly be six years back from 27 July 2017 or at the earliest in June 2017 – ie back to June 2011 only some three months before the single status agreement brought an end to the actionable inequality of pay. Those claims would at best have negligible value and on the principles relating to amendments in Selkent Bus Company v Moore we decline to allow the amendments.6.3 STAs with SEN – claims presented AFTER 23 February 2012 The Armistead claims presented on 25 July 2013 – the nomination on 23 February 2012 of the Planning Technician’s (Airey) job does not apply to them. There were accordingly no nominations prior to Mrs Pearson’s application to rely upon the comparators, which was in June/July 2017. That application was not an application to amend or add comparators, but a first nomination. Their claims may proceed in respect of the jobs of Road Worker 3, Painter (Meloy) and a Street Mason. (Road Worker 3 and Street Mason to be identified by name). Their period of claim dates back from 27 July 2007 to 1 October 2011 (the date of the single status agreement).6.4 STAs without SEN – Starkie, Finlay and Holliday (it is noted that the list may require clarification) They are entitled to proceed with the first nominations made on their behalf on 23 February 2012 in respect of the comparators Meloy (Painter) and Crosbie (Assistant Buyer). Their applications to amend to add three further comparators are refused upon the same grounds set out above for the pre 23 February 2012 claimants who are or were STAs with SEN.6.5 Teaching Assistants (Armstrong, Walton, Shanklin, McMillen/Walker and Balance Their claims are allowed to proceed in reliance upon the Assistant Buyer (Crosbie) only, he having been first nominated on 23 February 2012. That nomination dates back to the date of their respective ET1s and up to six years preceding that date. There is no application to amend or add comparators by the group.[7]There is liberty to apply for clarification of any parts of this judgment within 14 days of its promulgation. It is to be noted by all claimants that their remains outstanding an application by the respondent to strike out their claims in reliance upon the newly identified comparators as explained and ordered in the case management orders made above. The respondent submits that their claims should likewise be struck out on the same grounds in the original Pearson judgment. It must not be thought that their claims are bound to succeed. They would be welladvised to take legal advice, perhaps by pooling resources to pay for it. EMPLOYMENT JUDGE HARGROVE[1]Margaret Starkie’s claims in respect of the comparator Meloy, and Barbara Pearson’s claims in respect of the comparators Meloy, James and the road worker 3 are not struck out as having no reasonable prospects of success. Ms Starkie’s claim in respect of the comparator Crosby is struck out as having no reasonable prospect of success.[2]Lisa Armstrong’s claims in respect of the assistant buyer and Elaine Chambers’ claims in respect of the highways maintenance team leader and buyer are struck out as having no reasonable prospects of success.[3]Any other claimant whose claim stood behind Lisa Armstrong and/or Elaine Chambers is also struck out.[4]It is noted and recorded that the claimants standing behind Ms Starkie whose claims are likewise not struck out are Finlay and Holliday; and the claimants whose claims stand behind Ms Pearson, Balance, Harper, Heaney and Norman are likewise not struck out. NOTE[1]Reasons were given for the above judgment orally and the parties do not ask for written reasons. We however record a summary of our reasons for future reference.[2]There were four lead claimants for the purposes of this hearing to strike out. Ms Armstrong was the lead claimant for teaching assistants with SEN and sought to rely on assistant buyer Crosby. Mr Crosby’s job had been a purple book job in SCP21. Ms Starkie was the lead claimant for senior teaching assistants with no SEN pre 2013. She relied upon the painter Meloy. His was a red book job and he was in receipt of a bonus calculated at 34% of the white book salary at SCP7. A second comparator was the assistant buyer Crosby. The third lead claimant was Ms Pearson who was a STA with special educational needs post 2013 who relied upon road worker 3 white book job who was also in receipt of a bonus of 39%, Mr Meloy as above and a street mason Mr James, whose job was also a red book job with a bonus. Finally there was the lead claimant E Chambers for the higher level teaching assistants who relied upon the highways maintenance team leader Fielding whose job was a purple book job on SCP27 including six increments, and a buyer on SCP30 named West.[3]We concluded that Ms Benson’s evidence as to the comparative hourly rates of pay of these claimants and comparators represented a robust analysis of the relevant available pay information and established that based on an hourly rate taking into account the few hours and weeks that the claimant earned in a year the hourly rate was comparable. However we find in this case that the hourly rate comparison was not the appropriate manner in which the existence of a pay difference was where there was inequality in gross salary but that the hourly rate may represent a material factor defence particularly if it is established as being the reason for the difference in pay. This was established in Leverton. Leverton’s case concerned the comparison of her hourly rate in circumstances where the pay had been fixed by the CAC for both the claimant and the purple book comparator. In the present cases there has been a specific finding by the Tribunal, held by the EAT in 2008, that in the case of the painter Meloy there was no or no acceptable reason why he was being paid a bonus representing a 34% uplift, and in the case of the Mason and road worker 3 the earlier explanation of a genuine productivity related scheme had ceased to be valid as from about 1990 such that the 39% had become an automatic uplift. In Meloy’s case the Employment Tribunal had held in 2006 that the uplift had been paid in each year to Meloy for eleven years at least. It was a significant factor that these bonuses were paid to male dominated indeed probably exclusively male work groups, but not to female work groups, even those whose jobs might be amenable to a bonus. It was suggested during the 2006 hearing that the reason or justification for the payment was an entirely different one now being advanced; namely because a small proportion of the workforce worked a shorter working week and fewer weeks in the year, although we accept that it may be the case that there were no recognised claimants working 32.5 hours who were treated as working full time. A justification raised long after the event starts off as being of lower evidential value particularly when a different material factor defence, not this one, was put forward at the earlier hearing. It would in those circumstances be completely wrong to strike out claims in relation to the comparators who were in receipt of bonus though we accept that circumstances of the payment of the bonus to the road workers was slightly different than that relating to the painter.[4]We conclude that the other lead claimants have no reasonable prospects of success because the current comparators’ jobs must have been rated considerably higher than these claimants at a Hay evaluation which dated from the 1990s although the claimants’ jobs at that time were slightly differently characterised as nursery nurses and their jobs were reorganised in 2003 and later. We conclude that they would have been reassessed and there remains a substantial difference between the SCP levels of the claimants who rely upon their comparators were not in receipt of an established discriminatory bonus. The differences in the SCPs is significant enough for us to conclude that there is no reasonable prospects of the claimants Lisa Armstrong and Elaine Chambers being found to be of equal value. EMPLOYMENT JUDGE HARGROVE