Byrne & Ors v Financial Times Ltd & Anor [1991] UKEAT 194_91_1607

EAT
Byrne & Ors v Financial Times Ltd & Anor
[1991] UKEAT 194_91_1607 · 1991-06-19
MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory appeal from part of a decision of the learned Chairman sitting at London (South) in which he refused to grant an Order sought by the Applicants for further and better particulars of defences under S.1(3) of the Equal Pay Act 1970 - the genuine material factor defence. We dismissed the appeal and now give our reasons.Initially there were 16 Applicants involved in these proceedings brought by employees of The Financial Times claiming equal pay on the basis of "like work" or "work of equal value". Five Applicants no longer pursue their claim. The remaining Applicants fall into four groups as do the chosen comparators, but the groups are not strictly correlated. The Applicants draw their comparators from various of those groups. There are in all seven comparators. Some Applicants cite as many as six comparators.At a hearing during September 1990 an Industrial Tribunal found that four of the Applicants were engaged on "like work" with some of the comparators. However all 11 Applicants still continue to pursue relevant claims as they present their cases on one or both grounds.There have been voluminous pleadings identifying the issues arising between each Applicant and each of her chosen comparators. The Financial Times has raised S.1(3) defences in each case, seeking to establish that the differences in pay are due to a number of factors none of which is the difference of sex. Voluntary discovery has been given by The Financial Times and we were told that some 1240 documents have been produced which include the most detailed information about the salaries and any variation in those salaries over the years. In one case a merit award of a fixed sum is pleaded. We have not been taken through each and every issue between each Applicant and each of her chosen comparators, but have been given examples which illustrate the principal issues between the parties on this appeal. The bundle of documents prepared for this appeal indicate that the pleadings and related interlocutory matters already extend over some 200 pages.In these cases where further and better particulars are sought The Financial Times is relying upon a number of factors to establish the difference in pay, for instance, different responsibilities, different hours of work or rotas, total flexibility, "red circling" and collective bargaining. These pleas are raised in most of the cases against a recital of the background history of the working record of each comparator.What the Applicants are seeking is a breakdown of the difference in salary and an allocation of a specific sum or a specific fraction of that difference to a particular fact in the work record or history of each comparator. We take as an example a request in connection with Mr Parmenter where the request is "Specify what part of Mr Parmenter's salary is attributable to each aspect of the history of his employment as set out in the Originating Application."The reasoning of the learned Chairman in his Decision is given in paragraph 9 which reads:-
"The next request is at page 30 and relates to the question of splitting Mr Ainsworth's salary in accordance with the history of his employment as set out in the Originating Application. Mr Bowers resists this and again points to the judgment of the Employment Appeal Tribunal in Enderby's case and particularly the remarks at paragraph 154 on page 60 and subsequent paragraphs where the Employment Appeal Tribunal comment on those paragraphs of the decision which are set out in paragraph 154. The views of the Industrial Members of the Employment Appeal Tribunal are given at paragraph 156. It seems to be that having regard to the general tone of the decision in Enderby's case and particularly those paragraphs raised in relation to the cross-appeal that the question of the splitting of a comparator's salary is not relevant. Accordingly I refuse to make an order for particulars which relates to the splitting of either Mr Ainsworth's salary or the salary of any other of the comparators should the point be raised in respect of them. I appreciate that in Enderby's case the matter was raised in connection with the market value of a certain group of employees because of their scarcity whereas here it is said to be required because of the work being on a rota basis an/or including night work and on flexibility provisions but it does seem to me that the same principles arise and that the pay of the woman and the pay of the comparator have got to be looked at as one sum and that it is not permissible to split them having regard to the judgment of the Employment Appeal Tribunal in Enderby's case."
In paragraphs 1 and 2 of the Notice of Appeal as amended the following points are made -
"The Industrial Tribunal erred in law: (i) In failing to order the Respondents to supply Further and Better particulars of the way in which the variations between the salaries of the comparators Ainsworth, Parmenter, Joseph, Bowyers, Honey and Weyman and the salaries of the applicants were attributable to each material factor relied upon on the basis of the question of the splitting of a comparator's salary was not relevant.
(ii) In accepting that the decision of the Employment Appeal Tribunal in Enderby v. Frenchay Hospital Authority [1991] IRLR 44 was general authority for the fact that the Respondents do not have to explain how each material factor or material difference relief upon justifies (in the sense of genuinely causes) all or part of the variation in pay complained of."It will be seen that Miss Gay is seeking, as the learned Chairman put it, "a splitting" or breaking up of the difference between the pay of an applicant and of each comparator into different compartments with a sum of money or a percentage applicable to each of the several factors.We were referred to the terms of S.1(3) of the 1970 Act itself in support of those submissions. The lay members of this Court indicated that where there was a single or obvious relationship between a factor and an amount, for instance, a merit award, then that could and indeed has been pleaded. They could also envisage an instance where a single factor like an hourly rate provided a total answer to the claim. However, they stress that in realistic industrial situations, it was impossible to attribute a particular weight to a particular factor when fixing a wage, whether in bargaining terms or not. Indeed those bargaining on each side may themselves give different importance to different factors. Moreover, it was pointed out that genuine material factors might be such that without them the male comparator would have been paid less than the Applicant. This was stressed in order to emphasise the reality that the situation quite often occurs where it is impossible to attribute a particular percentage or amount to a specific part of the variation and that more than the variation may ultimately be proved.In the face of this Miss Gay told us that what she really wanted to know was whether there was a particular factor relied upon for a specific figure in the wage and if not, whether the Respondents were relying upon an amalgam of the factors to establish the difference.Mr Bowers then addressed us upon this basis. Both sides had presented written submissions to the learned Chairman before the oral hearing before him. These are no doubt on the Industrial Tribunal file and were in the bundle of documents presented to us. Mr Bowers drew our attention to his written submissions. In particular we were referred to p.236 where the following appears -
"2 The Respondent is asked to specify what part of Mr Ainsworth's, Mr Bowyer's and Mr Parmenter's salary is attributable to each aspect of the history of his employment (page 4 of Request item (b) respectively).
There is no plea that any particular part of Mr Ainsworth's salary is attributable to particular aspects of the history of his employment and there is neither statutory nor any other obligation on the employer to divide up the elements of pay in this way. Pay is not given, determined or agreed by this Respondent (or indeed many other employers) in watertight compartments reflecting particular elements of its make up save to the extent that it is described in a particular way, as for example, bonus, merit award, service award, with which information the respondent has already been provided. In any event we have given full details of the salary record cards of all relevant employees."It seems to us that the case for the Respondents was made perfectly clear in those submissions, which were no doubt repeated in argument at the hearing before the learned Chairman. Miss Gay however meets this by pointing out that those submissions, which clearly form part of the record before us, are not actual pleadings and that the Respondents are not bound thereby.If at the full hearing the Respondents sought to raise such a point they would no doubt have received short shrift and if this was really all that Miss Gay needed to know, the matter could have been clarified by an exchange of letters.The learned Chairman was entitled to take the view that upon that issue the matter was perfectly clear and needed no further elucidation. Whether the defence succeeds or not is an issue for the full hearing. The Applicants cannot be said to be in doubt how the case is put against them. Particulars are not evidence.However, in her reply on the appeal Miss Gay reverted to her initial approach and argued that the learned Chairman was wrong not to require the particulars she sought. As the Industrial Members point out this could prove an impossibility in which case if the particulars had been ordered there was always the risk that the Notices of Appearance could be struck out.We would however look at the matter from a broader approach and adopt what we said in ADAMS v. WEST SUSSEX COUNTY COUNCIL [1990] ICR 546, 550G -
"In giving its decision in interlocutory proceedings an industrial tribunal is exercising its discretion, but that discretion must be exercised within the powers given to the industrial tribunal on that issue and within the relevant legal principles which have been evolved largely through decisions of appellate courts. It is the exercise of a judicial discretion. It seems to us desirable, and indeed we would have expected, that the same principle would apply to interlocutory appeals as for final appeals even though the former will in the main be the result of the exercise of a discretion. Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues: (a) Is the order made one within the powers given to the tribunal? (b) Has the discretion been exercised within guiding legal principles? (eg as to confidential documents in discovery issues; (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 ?"
The learned Chairman was clearly exercising powers which he had. General principles affecting the ordering of further and better particulars include that the parties should not be taken by surprise at the last minute; that particulars should only be ordered when necessary in order to do justice in the case or to prevent adjournment; that the order should not be oppressive; that particulars are for the purposes of identifying the issues, not for the production of the evidence; and that complicated pleadings battles should not be encouraged. Indeed, justice is not infrequently achieved by limited, though sufficient, pleadings followed by a hearing at which any problems which arise can be dealt with by adjournment or further interlocutory orders, together in any event with a sanction of costs.We can find no error of principle in the decision of the learned Chairman nor could the refusal to order these particulars be said to fall within the Wednesbury principle. Guidance was given by Lord McDonald in BOYLE v. TENNENT CALEDONIAN BREWERIES LTD [1978] IRLR 321.Thus, even if this appeal had proceeded on the Notice of Appeal we are of the view that it must fail.