Financial Times Ltd v Byrne & Ors [1992] UKEAT 701_91_0701

EAT
Financial Times Ltd v Byrne & Ors
[1992] UKEAT 701_91_0701 · 1992-01-07
[1]The respondent who intends and wishes discrimination.[2]The Respondent who intends discrimination but who bears no ill will - "the apologist."[3]The Respondent who does not intend discrimination, does not wish it and may well be unaware of it, but who discriminates by stereotyping work as "womens work." This is sometimes to be found in particular pockets of employment. Indirect discrimination This constituted by the imposition of some criterion, condition or requirement which has a disproportionate effect on women because they are women and which can take one of the following forms.[4]The respondent who imposes that condition with the object of disadvantaging women (this is akin to direct discrimination).[5]The respondent who without any intention of causing disadvantage to women imposes a condition which is not overtly discriminatory - it is neutral in effect - but which has that effect. In some cases this can be proved by direct comparison between the applicant and his or her comparator, but in others this is proved by taking appropriate groups or pools for the applicant and the comparator (comparing like with like) and showing that the applicant is a member of her pool, which is predominantly female, is unable or less able to meet the requirement than the comparator as a member of his pool which is predominantly male." The Applicants raised therefore, in their pleadings in this case, the allegations that the factors relied upon, each and every one of them, are invalid and do not satisfy the provisions of Section 1(3) either first because they are direct discrimination or secondly indirect discrimination, or third, where it is raised that this was a pay practice and that is to be found in the reply of all the Applicants where they say at page 199 of the documents:
".... the Applicants' case is that there was indirect sex discrimination and/or the application of a pay practice which impacted disproportionately to the disadvantage of women in the payment of the Applicants and comparators and that the Defence is thus tainted by sex discrimination and cannot succeed."
To the Industrial Members sitting with me today "Pay practice" there used is really the equivalent of stereotyping in their commercial understanding, but it is used here as being the mere fact that there is a difference in pay and that the applicants form a pool of women and the comparators form a pool of men. Thus the issues in the case before us are on the application of factors; the causation of factors, and whether or not they are discriminatory. There is the one general defence which is conceded by Mr McMullen to depend, certainly in part, or mostly in Enderby but Mr Bowers submits that there are some other factors. Enderby itself raised a number of issues. First, it raised the issue of what has been called the Pay Practice; secondly, it raised the issue of the relevance of collective bargaining as a genuine material factor; thirdly, it raised the issue of market forces as a defence, but it is right that the burden of proof issue was not one that was raised in Enderby . On the collective bargaining issue there is an important distinction. In Enderby the collective bargaining was held to be wholly untainted by discrimination. In the present case that is going to be one of the main issues and the "Financial Times" makes a serious and clear allegation against the Trade Union involved, SOGAT, that at the time the control over pay was essentially in the hands of the Trade Union and that if there was discrimination it was discrimination of the Trade Union and not of the "Financial Times". Those are all matters for subsequent decision, and there may be many other issues raised in that connection. We have seen the order of the Court of Appeal in Enderby and the questions to be put to the European Court of Justice It seems to us that there are distinctions to be drawn from the likely facts in this case. With that general background the case put forward by Mr Bowers was that the discretion exercised by the Industrial Tribunal was erroneous in that the discretion exercised was as if this case was a case under United Kingdom law, whereas what mattered was the view taken by the European Court of Justice in Luxembourg and therefore there should have been a different approach; that one should be readier to adjourn and await a decision from Luxembourg than one would perhaps awaiting a decision here in the Court of Appeal or the House of Lords. In the first place we are unable to accept the valid distinction between the exercise of the two discretions. But it is also to be noted, that this case depends upon UK law, it is brought only under UK law and not under European law. Secondly, Mr Bowers said, the costs will be increased because there may be some evidence which may be unnecessary if one awaited the decision in Enderby ; that could be so, it is impossible to tell quite what that saving would be. Thirdly, he said that there was no prejudice to the Applicants financially, but Mr McMullen answers this and points out, validly in our view, that interest does not run on an award until given, and in fact this is a situation where the Applicants, four of them anyhow, have already succeeded on the "like work" claim. Next, Mr Bowers submits, that a split hearing is highly undesirable. That appears to us, at first blush, to be a sound point, but it seems to us on reflection that the embarrassment of a split hearing is very much the less if only the facts are found and subsequently the legal submissions are made on the basis of those facts. If that is so then the criticism made substantially disappears. But in any event, it occurs to us, that a hearing might have to be divided because of the need ultimately on certain findings of fact, for an employer to justify in cases of indirect discrimination. May we just explain that approach. In the first place here, either these Applicants have succeeded on "like work" or it is assumed that it is work of equal value and the defence being set up is a Section 1(3) defence. It seems to us although of course the procedure is entirely a matter for industrial tribunals but it may be that the convenient course is for the employers to open, to call the evidence on the factors, the causation of those factors and no doubt with the substantive case that they are not in any way the difference of sex. That evidence will be cross examined, certain matters will be put to the witnesses, there may be certain admissions, there may not, but at the end of that either the Applicants will decide to call no evidence and argue the case on the evidence so far or, more likely, they will call evidence and as indicated here they will be raising the defences that those factors, some or all or many, are directly discriminatory or indirectly discriminatory, or thirdly, they will set up what has been called the Pay Practice Defence. If, and in so far as having heard all the evidence the tribunal reaches the decision that some of those factors are indirectly discriminatory then it will be for the employer to justify them, objectively justify them. In that case it may be that the Tribunal will give a decision on the facts it has found so far and then leave the justification to a separate hearing because at that stage it is probably fair that the parties should know how the facts have been found up to that juncture. Ultimately, facts will all be found and then there can be argument on the law. It is in that sense that we envisage there might be a division of hearing but if the facts are kept separate from the law we see no embarrassment to the parties. Lastly, the case for the "Financial Times" is that the evidence will be much slimmer if there is an adjournment and the Tribunal awaits the decision from Luxembourg and that the Industrial Tribunal can only really decide and apply the facts against a known and accepted law, that evidence in vacuo is most unsatisfactory and the permutations are enormous. This is to some extent true, but the issues here are complicated enough and in our judgment the Tribunal were entitled, looking at these matters to take a view upon it. Mr McMullen for the Applicants, relies upon the reasoning in the Decision in paragraph 6 and has also pointed out that the Applicants had been waiting a long time. As we mentioned, the Originating Applications were in 1990; he points out that one of his clients is soon to reach the age of 60; another is critically ill, as to the others there are changes being made in what he terms "the media" and they ought to know where they stand; what their salaries are likely to be and he indeed submits that it would be wholly unfair to delay and hold them back because of litigation elsewhere between other parties. We accept that submission. Perhaps the most formidable submission he made however, is that the Applicants could still win outright on certain findings of fact without ever having to consider the issues of law raised by Enderby and that having looked at the pleadings seems to us a possibility. We have weighed up the issues; we have set out the law as we find it; we have looked at the Decision and reasoning of the Tribunal and the submissions of the parties and we have reached the conclusion that it would be quite wrong to say that the exercise of the discretion by this Tribunal fell outside the bounds which the Tribunal could reach in the light of the authorities to which we have referred. On this particular point therefore this Appeal is dismissed.