Redcar & Cleveland Borough Council v Bainbridge & Ors ("Bainbridge 1") [2008] EWCA Civ 885

“Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

“the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of employment.”

“ … indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”

“1. Member States shall take such measures as are necessary… to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. This Directive shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.”

“(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. (2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman’s contract”), and has the effect that- (a) where the woman is employed on like work with a man in the same employment - (i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which the man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term. (b) where the woman is employed on work rated as equivalent with that of a man in the same employment- (i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which the man is employed, that term shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term; (c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demand made on her (for instance under such headings as effort, skill and decision) of equal value to that of a man in the same employment- (i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term.” (i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which the man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term. (b) where the woman is employed on work rated as equivalent with that of a man in the same employment- (i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which the man is employed, that term shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term; (i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term.”

“An equality clause …. shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not a difference of sex and that factor – (a) 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; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference.” (a) 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; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference.”

“… applies to her a provision, criterion or practice which he applies or would apply equally to a man, but – (i) which puts or would put women at a particular disadvantage when compared with men, (ii) which puts her at that disadvantage, and (iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”

“In cases in which it is established that a group of women is being disadvantaged in comparison with a group of male workers (doing work which is the same or of equal value in the same plant or undertaking) no additional factor, whereby unequal treatment is applied, need be required.”

“As I have already stated in my basic comments regarding the nature of indirect discrimination, attention should be directed less to the existence of a requirement or a hurdle by means of which women suffer a disadvantage, and more to the discriminatory result.”

“16. However, if the pay of speech therapists is significantly lower than that of pharmacists and the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid. …. 18. Where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay. Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory.”

“….in considering section 1(3) of the Equal Pay Act 1970, the only circumstances in which questions of “justification” can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question of the employer having to “justify” (in the Bilka sense) all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a subsection (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the disparity of pay complained of.”

“…the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seem to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied on.”

“ 32.The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose.”

“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man’s contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden, the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied on must be the cause of the disparity. In this regard, and in this sense, the factor must be a “material” factor, that is a significant and relevant factor. Third, that the reason is not “the difference of sex”

“The reality of the situation was that it was discriminatory pay that was being protected.”

“At the end of the day, then, the industrial tribunal must be satisfied that the employers’ answer has shown that the prima facie discrimination in the field of pay is genuinely due to a material difference (other than the difference of sex) between the woman’s case and the man’s case. At the extremes it is easy enough. Suppose the case of a single employee approaching retirement in a few months’ time, whose job has ceased to exist and who is temporarily transferred at his old wages to a lesser paid job. We would not expect a woman’s claim based on a comparison with him to succeed. Suppose the case of men and women doing the same work before the coming into force of the Equal Pay Act 1970, the women being paid less than the men. If the men were put into a special category, and red-circled, we should expect the women’s claim to succeed. The difficulty is in the cases in between; and, in particular, in establishing the principle to be applied. For example: is it relevant to consider whether the red-circling is permanent or temporary, being phased out; whether the group of red-circled employees is a closed group; whether the red-circling has been the subject of negotiations with the representatives of the work people, and the views of the women taken into account; or whether the women are able equally with the men to transfer between grades? ”

“Putting these arguments (of counsel) side by side, it can be seen that the solution depends upon whether, in analysing the history of the difference in treatment of Miss Snoxell and Mrs Davies on the one hand and the red-circled male inspectors on other, one stops at the moment of the formation of the circle or looks further back to see why Miss Snoxell and Mrs Davies were not within it. The arguments presented to us have, not surprisingly, considered questions of causation, and it has been said that the inability of Miss Snoxell and Mrs Davies to join the red circle was, or was not, the effective cause of the current variation in the terms of their contract of employment. It seems to us that this earlier discrimination can be said to be an effective cause of the current variation. But we would put the matter more broadly. The onus of proof under section 1(3) is on the employer and it is a heavy one. Intention and motive are irrelevant; and we would say that an employer can never establish in the terms of section 1(3) that the variation between the woman’s contract and the man’s contract is genuinely due to a material difference (other than the difference of sex) when it can be seen that past discrimination has contributed to the variation. To allow such an answer would, we think, be contrary to the spirit and intent of the Equal Pay Act 1970, construed and interpreted in the manner we have already explained. It is true that the original discrimination occurred before December 29, 1975 (the date when the 1970 Act came into force) and accordingly was not then unlawful; nonetheless it cannot have been the intention of the Act to permit the perpetuation of the effects of earlier discrimination.”

“For these reasons we do not consider that the GMF defence and justification has been established in the present case in relation to pay protection. We have done the critical evaluation. The respondent has not proved that the need to phase out discrimination justified the continuation of any form of enhanced payment to the men without also enhancing equivalently the pay of the women’s groups.”

“There is no doubt that the reason for the difference in treatment resulting from the operation of pay protection was the fact that protection is given only to those actually in receipt of higher pay at the time when the scheme was implemented. The reason why the successful women claimants were not given the same pay protection was not, therefore, specifically because of their sex. It was because the pay they were in fact receiving was not being reduced, and mitigating measures were not needed for them. That, however, does not of itself preclude the GMF being sex-tainted. In Snoxell only the male group had their pay protected. It was accepted that the employer was not seeking deliberately to protect the pay of that group because they were male, but that was the inevitable effect of the way in which pay protection was applied, and furthermore it would have been obvious at the time. It is true that there was no time limit on the pay protection arrangements in Snoxell but the reasoning of the EAT in that case suggests that they would have found the GMF to be sex-tainted even if there had been. 159. Not without some hesitation, we have concluded that the position here falls within the principle enunciated in Snoxell. The tribunal was entitled to find that the GMF was sex tainted and could not be relied on. Sex discrimination was a direct and significant cause of the difference in treatment. In our view this can be seen most clearly perhaps with regard to those whose equal pay claims had been conceded prior to the protected pay being implemented. By fixing on whether the employee was actually in receipt of pay, rather than being entitled to it, the effect was to exclude that predominantly female group. There was an inextricable link, apparent to the employer at the time pay protection was implemented, between the sex of these workers and the reason why they were not in receipt of pay protection. 160. It is true that since they were not actually receiving pay (we think the EAT must have meant increased or enhanced pay) the need for cushioning was not present. They would presumably have arranged their financial commitments on the basis of what they were actually receiving. But this in turn was only because their claims to equal pay, which the employer had already conceded were justified, had not been implemented. Mr Cavanagh accepted that, had they been in receipt of their lawful pay by the date of implementation, there would be no answer to their claim to pay protection. The council can surely not pray in aid its own failure to implement equality as a justification for defeating it. It would frustrate the fundamental principle of equality to deny them benefits which, as everyone accepted, they were legally entitled to receive. Had the employers corrected the inequality when they ought to have done, then there can be no doubt that these women would have been in exactly the same position as the comparators. They would have had the benefit of the pay protection.”

“163. …If the employer can show a ‘carefully crafted and costed scheme’ negotiated for the purpose of cushioning the effects of a drop in pay and without any reason to suppose when it is implemented that this would have discriminatory effects, then it may be that he could demonstrate objective justification. The argument would potentially be reinforced if the costs of retrospectively conferring these additional benefits on the women were significant. But that is not this case; it is an argument for another day.”

“The respondent has not proved that the need to phase out discrimination justified the continuation of any form of enhanced payment to the men without also enhancing equivalently the pay of the women’s groups.”

“161. The argument does not have the same force for those whose claims were still in dispute, or had not been lodged, by the date of implementation, if only because the council did not know at that time that the criterion they were adopting would necessarily adversely affect this group. Having said that, there was plainly a possibility that it would. It may be said that the same is not true of those who had not by then made any claims at all, but again there must have been a realistic appreciation that further claims of that nature would be forthcoming. Furthermore, as we have said, no argument was addressed to the employment tribunal by either party that that was in principle a proper approach and the issue was only very briefly touched upon before us in oral argument by Mr Cavanagh. In the circumstances we think there is no basis in this case for distinguishing between the different categories of women. Accordingly we find that the claimants are entitled to the benefit of pay protection whenever their claims were initiated and whether their claims were conceded or became established after trial.”

“These (paragraphs) indicate that the only proper way of complying with Article 119 is to grant to the persons in the disadvantaged class the same advantages as those enjoyed in the advantaged class once the finding has been made that discrimination in relation to pay exists and so long as measures of bringing about equal treatment have not been adopted. Secondly, once discrimination has been found to exist and the employer takes steps to achieve equality for the future by reducing the advantages of the favoured class, achievement of equality cannot be made progressive on a basis that still maintains discrimination, even if only temporarily.”

“25. It is sufficient to say that equal treatment between men and women in relation to pay is a fundamental principle of Community Law and that, given the direct effect of article 119, its application by employers must be immediate and full. 26. It follows that, once discrimination has been found to exist, and an employer takes steps to achieve equality for the future by reducing the advantages of the favoured class, achievement of equality cannot be made progressive on a basis that still maintains discrimination even if only temporarily. 27. The answer … must therefore be that the step of raising the retirement age for women to that for men which an employer decides to take in order to remove discrimination in relation occupational pensions as regards benefits payable in respect of future periods of service cannot be accompanied by measures, even if only transitional, designed to limit the adverse consequence which such a step may have for women.”

“The council can surely not pray in aid its own failure to implement equality as a justification for defeating it. It would frustrate the fundamental principle of equality to deny them benefits which, as everyone accepted, they were legally entitled to receive. Had the employers corrected the inequality when they ought to have done, then there can be no doubt that these women would have been in exactly the same situation as the comparators. They would have had the benefit of the pay protection.”

“We do not accept that the respondent had no reason to suppose, when pay protection was implemented, that it would have discriminatory effects. Applying the Bilka test we consider that a period of protection of previously discriminatory pay limited in time in order to phase it out will have been in itself a legitimate aim. It may be that it was a reasonably necessary means of achieving the objective of phasing out pay (we think they must have meant unequal or discriminatory pay), but it has not been shown that it is an appropriate and proportionate means of achieving that objective when the size of the disadvantaged group and the cost of including or excluding that group had not been calculated. In short this defence was tainted by sex discrimination and to the extent that it was, it was not justified.”

“87 …whether it infringes the principle of equal pay to fail to apply the scheme retrospectively to those persons, predominantly female, who it was later found were entitled to receive equal pay but did not receive it even before the protected pay scheme came into force.”

“…Even if it did, it was bound to fail since the Council were in effect relying on their own failure to correct an inequality which they knew existed as the justification for defeating the claim. Although the reason for not including the claimants was that they were not in receipt of the higher pay when the scheme was introduced, that was only because the employers had failed to make that payment knowing they were entitled to it. The case was analogous to Snoxell which involved the continuation of direct sex discrimination. The other claimants in that case effectively succeeded on the back of the women whose equal pay claims had been conceded.”

“An important preliminary question, which lies at the heart of this issue, is whether it can, as a matter of law, ever be proportionate to deny a woman a benefit she would have had if she had received her equal pay at the appropriate time. Is the employer necessarily prevented from relying on his own failure to provide equal pay when he ought to have done?”

“The Council is not knowingly and deliberately dragging its heels in failing to implement pay rises which it knows are due to the women. Moreover, the claimant is not being denied the appropriate pay she ought to have received for the job. That is achieved by granting back pay and it is not suggested that there could be any justification for denying her that. She is being denied a payment which was contingent on the employee receiving the higher pay at the material time, which she was not doing. …. That adversely impacted on these women but we see no reason in principle why such adverse impact should not be capable in an appropriate case of constituting a justification for the difference in treatment. Accordingly, in our view, the withholding of protected pay does not inevitably involve a failure to give full effect to Article 141, …. that provision itself recognises that some forms of sex tainted discrimination can be justified.”

“The Tribunal placed considerable emphasis on the (Council’s) failure to carry out that exercise (advance estimation of the cost of including successful women claimants) but without identifying this intrinsic difficulty. Moreover, in its consideration of the justification of the arrangement, whilst it recognised the cushioning effect, it did not place any emphasis upon it at all when analysing whether the payments were justified. For these reasons we would accept that its decision cannot stand.”

“We consider given that the purpose of the scheme was to cushion employees from the potentially disastrous effects of a sudden drop in pay, the Council was entitled to take the view that it should limit the benefit to those actually in that group and to exclude all others even if some of them ought to have been in the group. Unless the pay was actually being received, there was nothing to protect. We think that is itself sufficient justification, but it is reinforced by the fact that the need to reach a protected pay arrangement, with the agreement of the unions was crucial to the making of the job evaluation scheme. Any assessment of future costing would inevitably be highly speculative and would undermine the ability to obtain agreement for the scheme.”

“109. …it seems to us that in substance the matters we have identified will be true of all schemes of this nature. In truth the answer is not likely to be fact sensitive, at least not where large employers are involved. In every case the justification based on the need to cushion the reduction in pay actually received will apply. So, to a greater or lesser extent, will the risk of a large but unknown number of potential claims which would scupper the ability to reach agreement.”

“Having succeeded in reliance upon the first comparator in achieving an equality clause entitling the claimant to an increase to £120 per week, there is nothing inconsistent in her seeking to obtain an equality clause entitling her to an increase to £150 per week in respect of a second comparator. If, however, the claimant had, having obtained judgment on liability in respect of both comparators at the same time and, with knowledge of the facts relating to the pay of both comparators, elected to pursue a remedy in respect of the first comparator only, then the principle of election might, arguably, apply, but those are not the facts here.”

“124. We divided on this issue. Like the Tribunal, the majority (the President and Mrs McArthur) prefer the arguments of Mr Allen on this point. It is not, in our judgment, a situation where the same breach of contract is pleaded in each case. The principle of res judicata is a procedural one; it is really a rule of evidence as the quote from the speech of Lord Guest shows. It is also rooted in public policy and in particular that it would be oppressive to allow the further action to be taken. If one looks at the case from that broad standpoint, it would in our view be unjust to impose what would effectively be a lottery on claimants, forcing them to take a chance on which case to advance. Do they choose the most favourable potential claim even if there is the greatest risk of losing, or the least favourable because perhaps it has the greatest chance of winning? We do not think that the purpose of the doctrine is to place claimants in such an invidious position. 125. In our view these separate claims are distinct causes of action. It is not accurate to say that each breach of the equality clause is the same breach of contract. It is a breach of the same term but committed in different ways. Conquer v Boot shows that you cannot seek to dissect what is in substance a single promise into a series of separate obligations and treat them all distinctly. The analysis in fact is closely linked with the principle in Henderson v Henderson. All aspects of the single promise must be considered together. It would be an abuse to run the litigation in any other way. But the promise to pay the same as man A is not the same as the promise to pay the same as man B. The second claim is not simply a re-framing of the original cause of action, as in Conquer v Boot. 126. Adopting the approach of Talbot J in the Conquer case, in our view the evidence in the two cases would be quite different, the breach may occur at a different time- for example, man B may be employed much later than man A- and the limitation periods would not necessarily be the same. This is one contractual term, but it potentially contains a number of contractual promises, and the employer is obliged to honour each.”

“36. It does seem to us, however, that the language of the provision brooks no argument. It is simply wrong to say that somebody in the period prior to the job evaluation study coming into effect has had their job rated as equivalent under a job evaluation study. Plainly they did not. Whereas it can be said that someone who is found to have been employed on like work or work of equal value was so employed at earlier periods (on the assumption that the jobs had not changed), it is an impossible construction to say that someone whose job was rated as equivalent with her comparator under a job evaluation scheme from a particular date, was so rated prior to that date. All that can be said is that if precisely the same job evaluation study had been carried out earlier, they would have been so rated.”

“32. It is simply impossible to say with regard to someone whose job has been rated as equivalent in a job evaluation study as from 1 April 2004 that they were employed on work rated equivalent under that job evaluation study before that date.”

“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.”

“To make provision for the use of statutory procedures in relation to employment disputes”

“(3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, (b) the statutory procedure was not completed before the proceedings were begun, and (c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.”

“(4) The duty under subsection … (3) to make … [an] increase of 10 per cent does not apply if there are exceptional circumstances which would make … [an] increase of that percentage unjust or inequitable, in which case the tribunal may make no … increase or … [an] increase of such lesser percentage as it considers just and equitable in all the circumstances.”

“Step 1: statement of grievance 6The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”

“Step 2: meeting 7(1)The employer must invite the employee to attend a meeting to discuss the grievance. (2) The meeting must not take place unless— (a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and (b) the employer has had a reasonable opportunity to consider his response to that information. (3) The employee must take all reasonable steps to attend the meeting. (4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.”

“Thank you for your grievance and covering letter from your solicitor. You are one of several hundred people who have lodged grievances of effectively identical issues. The Council’s grievance procedure is entirely internal and consequently your solicitor cannot play any part in the proceedings. The Council has written directly to your solicitor informing him of this. As you will have been told by your solicitor all the matters you have raised are the subject of current litigation between the Council and some of its workforce. Consequently the Council is not in a position to reach any decision on the matters you have raised until the outcome of the litigation is known. Your entitlement to a grievance meeting under Part II chapter 1 of Schedule 2 of the Employment Act 2002 does not arise until the Council has had a reasonable opportunity to consider its response to the information you have provided. Such an opportunity will not arise until the issues and litigation have been decided. Therefore we have recorded receipt of the grievance which will be placed on hold pending resolution of these issues. This will not in any way prejudice your position, as lodging the statutory grievances [is] recognised by the Employment Tribunal as the operative date for any application you may wish to make in the future.”

“was that the employee be given the opportunity to explain their cases at a meeting with a manager. All that was required of the respondent was that the manager should state that the respondent had decided not to enter into any discussions with a view to avoiding Tribunal proceedings with individuals. No special knowledge of the merits or otherwise of the claimants’ claim was required. The claimants clearly had no such knowledge. The manager appointed to attend a hearing need not have had any such knowledge….. a collective meeting could have been arranged…. A decision to litigate the matters did not render it impracticable to hold a meeting or meetings, nor did the unlikelihood of any practicable progress in settling any claim…”

“12. The tribunal has then to decide whether to uplift the award by an amount of between 10 and 50%, if we consider it just and equitable in all the circumstances under section 31(3), or, if there are exceptional circumstances which would make an increase of 10% unjust or inequitable the Tribunal may make no increase or a reduction of the increase of such lesser percentage as it considers just and equitable in all the circumstances under section 31(4).”

“Based on this approach, we reject the claimants’ argument that it would be just and equitable to increase the amount to more than 10%. That would be to present the claimants with a wholly unjustified windfall. We do not however consider that it would be just and equitable to award no increase because there has been a blatant failure to follow the statutory grievance procedure which was able to be followed, for example, in the South Lanarkshire cases. Taking all the factors and circumstances into account we considered that if, contrary to our contentions about Regulation 10, there was a breach by the respondents of section 31(3) it would be just and equitable to restrict the increase to 5%.”

“They did not do this as individuals, but through letters from the lawyer representing them, Mr Cross, which indicated that they would only deal with the matters through Mr Cross. Each of the employees represented by Mr Cross has entered into a conditional fee agreement under which Mr Cross will get a certain percentage of any back pay recovered. In return they do not have to make any payment, although they will have to do so if they seek to negotiate a settlement independently of him, or bring his services to an end. We were referred to the relevant terms of the agreement, which were as follows: "If [a signatory ends] the agreement before the case is won or lost, you are liable to pay our costs incurred at the rate of £160 per hour (the hourly rate) with letters, emails and telephone calls charged at £16 each….(all plus VAT).”

“An agreement of this nature does not sit happily with the statutory provisions designed to secure settlement; indeed, it undermines them. The lay members accept Mr Cavanagh’s submission that in effect this amounted to a potentially significant financial penalty on the claimants which created an equally significant incentive not to allow any mediated settlement. (It has not, however, been suggested that the terms to which we have referred were unethical or improper, and we say no more about them).”

“The purpose of this legislation is to ensure that there is every effort made to seek to settle disputes before they go before the tribunal. There was in truth no possibility whatsoever that grievance meetings held with individuals could have resolved anything. Mr Cross would not have been there since the employers were not obliged to allow him to be there under the procedure and for understandable reasons did not want him to be. The individuals could not resolve matters without risking potential significant liabilities under the contingent fee agreements; and in any event the issues are too complex for them properly to understand the implications of any decision they might take. The whole exercise would have been of an entirely hollow and formalistic kind. Any solution had to be reached with Mr Cross.”

“We recognise that this tribunal will interfere with any such conclusion only in very rare circumstances, but we are unanimously of the view that this is such a case. The pointlessness argument is in our view overwhelming … it is wholly fanciful to believe that any agreement could be reached with anyone independently of Mr Cross, and attempts to resolve matters with him under the auspices of David Bean QC had failed. A little later it continued at paragraph 88: “We consider that, to use the language of s.31(4), it would be manifestly unjust and inequitable to increase by any amount at all any compensation owed to these women because of a failure to go through the charade of individual interviews. We strongly suspect in fact that most women would not even have turned up. If they had done so, they would have had precious little understanding of their claims, as the tribunal recognised in terms.” “We recognise that this tribunal will interfere with any such conclusion only in very rare circumstances, but we are unanimously of the view that this is such a case. The pointlessness argument is in our view overwhelming … it is wholly fanciful to believe that any agreement could be reached with anyone independently of Mr Cross, and attempts to resolve matters with him under the auspices of David Bean QC had failed. “We consider that, to use the language of s.31(4), it would be manifestly unjust and inequitable to increase by any amount at all any compensation owed to these women because of a failure to go through the charade of individual interviews. We strongly suspect in fact that most women would not even have turned up. If they had done so, they would have had precious little understanding of their claims, as the tribunal recognised in terms.”

“The fact that another Council called a meeting for form’s sake does not justify the conclusion that every Council should do the same. The Council in our view adopted a sensible and practical approach to the difficulties with which they were faced.”

“.. the formulaic way in which they were raised, without any tailoring to individual circumstances, showed that these were no more than documents designed to comply with the formal requirements of the law.” “.. the formulaic way in which they were raised, without any tailoring to individual circumstances, showed that these were no more than documents designed to comply with the formal requirements of the law.”

“Mr Allen says that we should only interfere with the tribunal’s conclusion on this matter if it is perverse. If it is necessary to do so, we do indeed unanimously consider that it was, even recognising the high hurdle required to establish perversity in cases such as Yeboah v Crofton [2002] IRLR 634. But in fact we think that the tribunal wrongly directed itself as to the meaning of just and equitable, and wrongly considered that because the failure to hold meetings was a deliberate policy, it could not be just to relieve the Council of the obligation to make any uplift.”

“… that would be to present the claimants with a wholly unjustified windfall”

“Robust case management is easier said than done.”