Collins v Chapman [1994] UKEAT 945_93_1403

EAT

Collins v Chapman

[1994] UKEAT 945_93_1403 · 1994-03-14

MR JUSTICE MUMMERY (PRESIDENT) : Introduction: This is an unusual case. The appeal is against a decision of the Industrial Tribunal held at Lincoln and later at Nottingham, in March and October 1993. After a 4 day hearing the Tribunal, for reasons notified to the parties on 21 October 1993, unanimously decided that a claim brought by Mrs Collins against her former employers, a firm of solicitors Wilkin Chapman, should be dismissed. The claims dealt with by the Tribunal were of alleged sex discrimination and victimisation contrary to the Sex Discrimination Act 1975 and of violation of Mrs Collins' rights under Article 119 of the Treaty of Rome.

Mrs Collins was dissatisfied with that decision. She appealed to this Tribunal by a Notice of Appeal dated 6 November 1993. The grounds of appeal were prepared and signed by Mr Collins on behalf of his wife. Mr Collins has presented his wife's appeal at the hearing. He made clear and forceful submissions as to why the appeal should be allowed.

The Proceedings:

Before we deal with the individual points raised on the appeal it is necessary to state the history of the dispute. Mrs Collins was employed by Wilkin Chapman as a word processing operator/secretary on 11 July 1989. She was dismissed without notice on 6 June 1991. On 12 June 1991 she presented an Originating Application to the Industrial Tribunal. She complained in that application of unfair dismissal and of failure to pay equal pay for equal work in breach of the Equal Pay Act 1970. She had not completed 2 years continuous service at the date of her dismissal. She was not therefore entitled to pursue her complaint of unfair dismissal.

The Tribunal observed in paragraph 35 of their decision that, had she been able to maintain her claim of unfair dismissal, they had little doubt that it would have succeeded. The Tribunal commented:

"The decision to dismiss her was unjust and unreasonable and does not reflect well on the respondent."

In respect of her complaint under the Equal Pay Act Mrs Collins was asked by Wilkin Chapman to name her comparator. The request was initially rejected by Mr Collins on behalf of his wife as "arrogant" and "offensive". An Order was made by the Tribunal on 5 July 1991 to furnish in writing to Wilkin Chapman the name of the man with whom Mrs Collins wished herself to be compared by the Industrial Tribunal. In a letter of 8 July Mr Collins wrote giving the name of the comparator, stating that was the person "with whom we are drawing comparison in the hearing of equal pay".

Wilkin Chapman believed that the person named as a man was a man at the time that person commenced employment with the firm in October 1990. In fact, the person named was biologically a woman. An Affidavit was sworn by the person in question giving details of birth and registration of birth as being of the female gender. The birth certificate was produced in evidence and the Affidavit of Facts on this point stated:

"I have the medical condition known as Gender Dysphoria Syndrome for which treatment involves the alteration of physical appearance but cannot alter the genetic structure of the cells so my sex chromosomes remain XX."

Wilkin Chapman took the point that difference in sex was an essential determinant in claims under the Equal Pay Act and in Sex Discrimination law and that national law defined sex biologically, not by reference to any other characteristic. In a decision notified to the parties on 25 March 1992 the Industrial Tribunal sitting at Lincoln dismissed the claims for unfair dismissal and under the Equal Pay Act 1970. The Tribunal stated that its job was to administer the law not to write it. The law was clear. In order to bring an unfair dismissal case it was necessary to have 2 years continuous employment. Mrs Collins had less than 2 years continuous employment. The Tribunal stated:

"We have to dismiss the application for unfair dismissal as we have no jurisdiction".

The Tribunal considered the Equal Value claim and the allegation by Mrs Collins that she was not in receipt of equal pay for equal work even though the same equipment and similar work was carried out in the same office. In respect of that allegation the Order was made for the naming of a comparator.

The Tribunal said:

"4. Under the Equal Pay Legislation, it is for the applicant to name a comparator. It must be, clearly since the allegation is over the person being paid less by reason of their sex, that the comparator is a person of different sex. The applicant named a person, who she understood was a male and was being employed as a male secretary. She identified that person (we do not, in public, identify that person for obvious reasons). As it turned out that person, although originally employed in the belief that the person was a man, was a woman. The partners at Wilkin & Chapman, shortly after the employment had commenced, discovered that the person was a transsexual and was a woman."

The Tribunal noted that Mrs Collins agreed that there was no man that she could point to of a similar grade in the office whom she could use as a comparator. The Tribunal stated:

"It has to be this person or no one at all. That person is a woman and therefore her application must fail under the equal pay legislation."

The application failed because there was no male comparator that Mrs Collins could name.

The decision of the Tribunal revealed that there had been what had been described in the decision as "relatively amicable discussions in the Tribunal". Those discussions threw up the question whether Mrs Collins was, in reality, making an allegation of direct sex discrimination under section 1(1)(a) of the Sex Discrimination Act 1975. The Tribunal stated that they were sympathetic to Mrs Collins being allowed to argue before a Tribunal a case of sex discrimination, so that she would have a chance to air her grievance. The Tribunal did not allow an amendment to the proceedings. The said that she should undertake to issue an Originating Application to the Tribunal, itemising complaints of direct sex discrimination. They would then consider whether to allow the application to be heard out of time.

Directions were given in relation to the application under the 1975 Act.

On 10 January 1992 Mrs Collins presented to the Industrial Tribunal her complaint of direct sex discrimination. She stated in the details of the complaint:

"I claim direct sex discrimination under S.1(1)(a) of the Act.

My employer offered terms and conditions to a newly recruited employee, which were applied in practice, and were to my detriment, when considering that person was employed to carry out the same functions as myself, using the same equipment in the same office."

The reference to the "newly recruited employee" is to the person named as a comparator, engaged as a word processing operator and secretary in October 1990. The details concluded:

"I was further treated unfavourably by way of discrimination on 6th June 1991."

That is the date of dismissal.

There were in that application two complaints of discrimination, one in relation to the appointment of another person to a similar job on more favourable terms, the second in relation to Mrs Collins' dismissal.

That application came before the Industrial Tribunal at Lincoln on 22 October 1992. For reasons notified on 21 November 1992 the Tribunal decided that they had jurisdiction to hear the claim. In the Reasons they summarised the events which had led up to this application under the 1975 Act. They heard argument from Wilkin Chapman as to why the Tribunal had no jurisdiction. Two points were taken by them. The first was that it was out of time. The Tribunal decided that it was just and equitable for the case to be heard. The second point was that the claim could not succeed when the comparator was assumed to be and was treated as a man. The Tribunal decided that it was not a case that should be struck out. Findings of fact would have to be made after hearing evidence.

Wilkin Chapman were dissatisfied with that decision. They appealed to the Employment Appeal Tribunal who heard the appeal on 3 February 1993. The Tribunal gave a full decision and decided that it was arguable that the words "or would treat a man" in section 1(1)(a) of the 1975 Act admit at least of an argument that you do not have to have an actual man for the section to apply. It might be arguable that Mrs Collins might establish that she was treated less favourably than her employers would treat a man by reference to how they in fact treated a person who was believed to be a man, although later on it turned out that that person was biologically a woman.

The Tribunal came to a similar conclusion in relation to the claim for victimisation under section 4 of the 1975 Act. In relation to section 4(1)(d) the Tribunal concluded that it was at least arguable that, if Mrs Collins contended that the person she thought to be male was being paid in circumstances which would give rise to a claim under the Equal Pay Act 1970, the fact that subsequently it turned out that this person was not a man, might not detract from the fact that that is what she believed at the time and that is what she was alleging. The Tribunal emphasised that they were doing no more than finding what they conceived to be an arguable construction of section 4(1)(d).

For those reasons the Tribunal dismissed the appeal of Wilkin Chapman.

The matter went back to the Industrial Tribunal for a third time, to hear the complaints of sex discrimination and victimisation under the 1975 Act. We shall refer in a moment to the findings of fact in the decision. There is one procedural matter which must be mentioned first in order to make sense of the argument advanced on this appeal.

During the hearing in March 1993 the Chairman of the Tribunal suggested that, apart from the claim under the Sex Discrimination Act, Mrs Collins might have a claim under Article 119 of the Treaty of Rome. Article 119 reads:

"Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work."

The Article concludes:

"Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job."

When the Chairman made that suggestion Counsel then acting for Wilkin Chapman asked the Chairman to put his arguments in writing so that he could consider them during the adjournment. The adjournment was between March and October 1993. The Chairman put his points in a letter of 11 May 1993. The Counsel then instructed replied in a letter on 29 September 1993 attaching to it 11 typed pages of argument.

As well as Mrs Collins' appeal against the dismissal of her claims under the 1975 Act and Article 119, Wilkin Chapman have a cross-appeal raising the question whether the Tribunal should have granted leave to Mrs Collins to amend her application to include a complaint that her rights under Article 119 had been violated.

There are five main points on the appeal raised by Mr Collins. First, victimisation, contrary to section 4; secondly, discrimination under section 6(2); thirdly, direct discrimination under section 1(1)(a); fourthly a complaint under section 8(3) and (4); and, fifthly, violation of Article 119. The point on the cross-appeal makes a sixth point which relates to Article 119, namely whether leave to amend should have been granted.

The Facts

We should first state the relevant findings of fact and conclusions of the Industrial Tribunal. The recruitment of the comparator arose out of the departure of a lady, Sandra McMahon, about July 1990. She had been on the same rate of pay as Mrs Collins. An advertisement was placed in the local paper for a word processing operator and secretary in the Louth office giving particulars of the job. The person named as a comparator was appointed.

The Tribunal set out the terms and conditions of employment of the comparator as compared with Mrs Collins and stated (in paragraph 26):

"that the applicant [Mrs Collins] was treated less favourably than [the comparator] because she was paid less and was on a lower grade although the same volumes of work were expected of her. Furthermore, she and [the comparator] were perceived until some time between March and June 1991 to be of the opposite sex."

The Tribunal made this important finding of fact:

"The remaining question is whether or not the respondent discriminated against the applicant on the ground of sex. Mrs Whittaker has asserted that sex had nothing to do with her choice of [the comparator] for the job or the amount of his salary. If we are to convict the respondent of violating Article 119, we have to be able to draw the inference that discrimination was on the ground of sex. Whether we draw that inference or not depends on analysis of the reasons given by the respondent for discriminating between the applicant and [the comparator]. First, there is no evidence to gainsay Mrs Whittaker's assertion that [the comparator] was the best candidate for the job in terms of qualification and particularly expertise and experience. We have not been able to compare his job application with that of the other two lady candidates whom she interviewed. Mrs Whittaker's own spontaneous reaction to the quality of [the comparator's] application appears on the form itself. We have no reason to doubt her assertion that he interviewed well. He had the advantage of having used a networked system so that he would not, at least in theory, require much, if any, training to get him started. Whilst she may have secured the services of one of the other two ladies more cheaply, [the comparator's] demand for £8,000 per annum plus was both affordable to the respondent and within the range of salaries already being earned by top secretaries within the undertaking. Furthermore, those salaries would shortly be reviewed. Meanwhile that of [the comparator] was not due to be reviewed until July of the following year. All those factors were set against a background of difficulty in finding suitable candidates in the Louth area for the job. If Mrs Whittaker wanted to secure the best candidate, then she had to pay his minimum demand. None of those reasons related to his sex and we can find no evidence that would entitle us to draw the inference that sex played a part in his selection and fixing of his salary."

The Tribunal went on to find further facts. In paragraph 28 the Tribunal dealt with Mrs Collins' case that she raised the issue of equal pay with Mr Carlton and Mrs Whittaker of Wilkin Chapman during March 1991 as a matter of sex discrimination. Thereafter she alleged that her complaint and her feelings in the matter were ignored and in due course she complained that she had been singled out for dismissal because she raised an Equal Pay Act claim and was considered to be a trouble-maker. That was Mrs Collins' case. The Tribunal rejected it. They stated in paragraph 28:

"We did not find the applicant an altogether reliable witness. She was plainly confused about the date when she raised the matter with Mr Carlton because, on her evidence, he was by then the branch partner. He assumed that role in February 1991 whereas Mrs Whittaker initially gave evidence that she had the conversation with him in that capacity in about November 1990. Furthermore, her evidence appeared to switch between an assertion that Mr Carlton had said that raising issues of pay was a "sackable" offence and an assertion that raising questions of equal pay was such an offence."

The Tribunal referred to the evidence concerning the circumstances of the treatment and dismissal of Mrs Collins. The relevant findings of fact are in three paragraphs of the decision, paragraphs 35, 36 and 37:

"35. Although Mr Carlton's memorandum at page 68B refers to frequent warnings in the past, the applicant had had no formal warnings spelling out to her the consequences of her failure to improve. Nothing had been put in writing to her. The decision to dismiss was prompted by Mr Carlton's impatience. He was prepared to be ruthless in achieving his ambition of improving the turnover of his branch by turning out the work as fast as possible. He was insensitive to the demands made on the applicant and both he and Mrs Whittaker were insensitive to her genuine grievance that she was being expected to turn out as much work as [the comparator] on a salary which was at least £800 per annum less than his. The evidence indicates that the applicant was a competent and capable word processor operator/secretary. We reject the allegation that she had a depressing affect on others in her office throughout her employment with the respondent. We accept, however, that she was disaffected during the last 3 months of her employment but had good reasons for her disaffection. In short, had she been able to maintain her claim of unfair dismissal, we have little doubt that it would have succeeded. The decision to dismiss her was unjust and unreasonable and does not reflect well on the respondent.

36. Nevertheless, we have to decide whether in its treatment of her, the respondent was treating her less favourably than it treated or would treat a man on the ground of her sex. There are two ways in which she supports that allegation: first, that in dismissing her and not [the comparator], she was the victim of sex discrimination; and secondly, that she was dismissed because she alleged that the respondent had committed an act which would give rise to a claim under the Equal Pay Act 1970. Whilst we accept the argument that what matters is the allegation and not whether in law a claim under the Equal Pay Act 1970 could be maintained, we do not find on the evidence that she had made such an allegation. Instead, we find that her complaint related to general unfairness and not specifically to the difference in sex and pay. Furthermore, we are satisfied that she was not dismissed because she complained about her rate of pay. Instead she was dismissed because she was seen by Mr Carlton as an impediment to the realisation of his ambition and because Mrs Whittaker was persuaded that she should be dismissed before she acquired employment rights. Her dismissal had nothing to do with her sex.

37. As for the argument based on the fact that [the comparator], although the subject of earlier complaint, was not dismissed, we accept the explanation of the respondent. Mrs Whittaker distinguished between their cases not because he was a man or the applicant was a woman. Instead, the applicant was dismissed because on further investigation it appeared that she was the worse offender in terms of work output and because she was approaching the two year threshold, whereas there was plenty of time left in which to consider the position of [the comparator]. Furthermore he had been employed as a higher rate of pay and the respondent could reasonably expect more of him."

The Tribunal concluded:

"38. In those circumstances, although we have considerable sympathy for the applicant in the way in which she was treated by the respondent, she is without remedy."

The points taken by Mr Collins on the appeal have to be considered against the background of those proceedings, those findings of fact and those conclusions of the Industrial Tribunal. We say now, of a number of points, that it does not appear from the decision that they were clearly raised before the Tribunal. We invited full argument both from Mr Collins and from Mr Bowers, on behalf of Wilkin Chapman, on the merits of all the points raised.

The first point is the claim for victimisation. Section 4 of the Sex Discrimination Act 1975 reads:

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a)... (b)... (c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 in relation to the discriminator or any other person, or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them."

As Mr Bowers submits, the relevant provisions raise two main questions. The first is whether Mrs Collins has done a "protected Act" that is an act in (c) or (d) and, secondly, whether that act was the reason for the treatment alleged to amount to victimisation.

The Tribunal found, as a fact, that Mrs Collins had not made an allegation that Wilkin Chapman had committed an act which would give rise to a claim under the Equal Pay Act 1970. The Tribunal also found as a fact that Mrs Collins was not dismissed because she complained about her rate of pay. She was dismissed because she was seen by Mr Carlton as an impediment to the fulfilment of his ambitions and because Mrs Whittaker was persuaded that Mrs Collins should be dismissed before she acquired employment rights. On the law relating to victimisation Mr Bowers referred us to the decision in the Court of Appeal in Aziz v Trinity Street Taxis Ltd

[1988] ICR 534

. In the judgment of the Court Slade LJ stated at page 542, when construing similar provisions in the Race Relations Act, that the legislative purpose of the provisions against victimisation is to ensure that, as far as possible, the victim should not be deterred from doing any of the protected acts by fear that they might be further victimised in one way or another.

The judgment emphasised that it is first necessary for the complainant to show that he has done a protected act. Then it is necessary to go to the question of causation. At page 546E it was stated that, if the complainant is to establish victimisation, he has to surmount the hurdle of causation presented by the provisions. It has to be shown that he was treated by the Respondent by reason that he, the complainant, had done one of the protected acts. At page 548A the Court stated that the necessary causal link has to be established. It has to be shown that the very fact that the protected act was done by the complainant influenced the alleged discriminator in his unfavourable treatment of the complainant.

Whether a protected act has been committed, whether there is a causal link and whether the alleged discriminator has been influenced in his unfavourable treatment of the complainant are all matters of fact. The Tribunal made findings of fact. The findings of fact are not open to challenge or review in this Tribunal. There has been no error of law on the part of the Tribunal in their decision to dismiss the claim of victimisation.

The second point raised in the appeal is under section 6(2) of the 1975 Act. Section 6(2) provides:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or by dismissing her, or subjecting her to any other detriment."

Under this heading Mr Collins made a number of points. He pointed to evidence that there had been a refusal by the Respondents to discuss the matter with Mrs Collins; that there was no grievance procedure and that the services of management and the facility of private interview were consistently denied to Mrs Collins when trying to raise her concerns with them. There had not been any recourse to grievance procedure, because she did not know that one existed; there was no statutory note on discipline or grievance procedures ever issued.

We note that there is no record in the decision of this point having been raised in the application or in argument. We are told by Mr Collins that, although it is not mentioned in the decision, he did raise the point in argument before the Industrial Tribunal. Mr Bowers stated that it is out of time to raise this point on the appeal. There are objections to granting leave to raise it late, because there would be a possible need to find further facts and to remit the whole matter to an Industrial Tribunal for a fourth time.

While noting those submissions, we prefer to look at the substance of this matter. Mr Bowers submitted that there could not be a complaint under this section that the word "facilities" in section 6(2)(a) has a restricted meaning and that it is established by authority that the failure to provide access to a service or facility must be in respect of an existing service or facility and not merely a failure to provide a specific advantage to the complainant. He submitted that Mrs Collins had failed to identify any existing facility or service to which she had been denied access. She had not specified any existing procedure to which she had been denied recourse. In those circumstances, quite apart from the facts and conclusions reached by the Tribunal on other matters relating to discrimination, there were no grounds for entertaining an application under section 6(2).

We accept those submissions. The Tribunal rejected the case advanced that there had been differentials in sex and pay and concluded that Mrs Collins' treatment was not less favourable to her on the ground of sex.

We turn to the third head, section 1(1)(a) of the 1975 Act and the complaint of direct discrimination. That section provides:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man."

In his arguments on this point Mr Collins highlighted favourable findings of fact concerning Mrs Collins; that she was competent and capable; that she was not causing depression or disaffection among others; that she had had no formal warnings; that she had greater experience than the comparator in the operating of word processing systems, as well as a number of other points decided more favourably to Mrs Collins than to Wilkin Chapman.

The difficulty of Mr Collins on this part of the case is that his attack on the decision of the Industrial Tribunal is one of perversity. He has to show that the conclusion reached by the Tribunal that there was no less favourable treatment on the ground of sex was not a permissible option, that it was a decision that no reasonable Tribunal would have come to. We accept Mr Bowers' submissions that the Tribunal were entitled to conclude having regard to the burden on Mrs Collins to establish her case, that on the facts found and inferences from the facts, there was no differentiation of treatment between Mrs Collins and the comparator on the ground of her sex. That ground of appeal therefore fails.

The next point was raised under section 8 of the Act. This point does not appear to have been raised before the Industrial Tribunal but for the reasons stated, we have invited argument on the merits. Section 8(3) reads:

"Where a person offers a woman employment on certain terms, and if she accepted the offer then, by virtue of an equality clause, any of those terms would fall to be modified, or any additional term would fall to be included, the offer shall be taken to contravene section 6(1)(b)."

Section 8(4) reads:

"Where a person offers a woman employment on certain terms, and subsection (3) would apply but for the fact that, on her acceptance of the offer, section 1(3) of the Equal Pay Act 1970 (as set out in subsection (1) above) would prevent the equality clause from operating, the offer shall be taken not to contravene section 6(1)(b)."

Section 6(1)(b) provides:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - (a)... (b) in the terms on which he offers her that employment."

The submission made by Mr Bowers on this point also makes it necessary to refer to section 6(5):

"(5) Subject to section 8(3), subsection (1)(b) does not apply to any provision for the payment of money which, if the woman in question were given the employment, would be included (directly ...or otherwise) in the contract under which she was employed."

On this point we do not have the advantage of a finding by the Tribunal, as it does not appear to have been raised for argument. We accept the submissions of Mr Bowers that the effect of the provisions is that section 8(3) applies only to the offer of terms as a once and for all breach. If an offer is made and terms are different as between men and women in the course of employment, only the Equal Pay Act 1970 applies. That is made clear by section 8(5) of the 1975 Act. Mrs Collins brought no claim under section 8(3). If she had done so it would have been struck out because it was out of time. The time limit is 3 months from the date of the offer by reason of section 76 of the 1975 Act. Alternatively, the point is made that the decision of the Tribunal on Article 119 concludes the issue against Mrs Collins, since the same principles apply under the 1970 Act as apply under Article 119.

As to the point raised under section 6(1)(b), the effect of section 6(5) is to exclude from the operation of section 6(1)(b) any contractual term dealing with payment, unless the term would fall to be modified by the equality clause. Since the original Tribunal found as a matter of law that there was no comparator with whom Mrs Collins could compare herself for the purposes of the 1970 Act, no equality clause could operate. The Tribunal could not reconsider the decision of the original Tribunal that there was no comparator within the meaning of the 1970 Act. Mrs Collins, who is a woman, failed to cite either in the Originating Application or at the Preliminary Hearing or otherwise, any male comparator with whom she wished to compare herself. The named comparator was also a woman. There were therefore no grounds for entertaining a ground of appeal from Mrs Collins under section 8(3) and (5) or under section 6(1)(b) and 6(5). We accept those submissions. There has been no error of law on the part of the Tribunal.

That brings us finally to the point under Article 119 both in the appeal and in the cross-appeal. The Tribunal rejected the claim under Article 119, having given leave to amend the application to raise it. Our conclusions are that the Tribunal should never have allowed the amendment to be raised. We shall allow the cross-appeal on this point. The reasoning of the Tribunal was that it had power to amend the Originating Application. All that was required was that an application should state the grounds on which relief was sought. There was no requirement to identify the statute or other rule of law on which the cause of action was founded. They pointed out that in her original application she had made it clear that she was claiming equal pay for equal work. The Tribunal concluded in paragraph 13 of its decision:

"Thus, it appeared to us that the issue arising from the applicant's right to equal pay enshrined in Article 119 had never been determined. Furthermore, it had always remained at the heart of the applicant's case from the outset so that justice demanded that the applicant should be allowed to have her claim determined on its merits rather than that the respondent should have the fruits of its earlier forensic victories."

The Tribunal was in error of law in allowing this amendment, because the earlier Tribunal, in striking out the claim under the Equal Pay Act 1970, had reached a decision on the issue of equal pay. We agree with Mr Bowers' submissions that the matter was res judicata. There had been a judicial decision pronounced by the earlier Industrial Tribunal. It was a competent Tribunal. That decision was final. The decision involved determination of the same question between the same parties. The same question related to the complaint of equal pay. The Industrial Tribunal erred in law by setting out a false dichotomy in paragraph 6 of its decision. The Tribunal stated in that paragraph, in relation to the argument on res judicata, that that which had been adjudicated was a claim under the Equal Pay Act 1970 on the narrow ground that the chosen comparator was of the female sex. There had been no adjudication on the issue whether or not the principle of equal pay for equal work had been violated in the applicant's case. As Mr Bowers points out, the 1970 Act incorporates into domestic law the principle of equal pay contained in Article 119. The matter has been decided. There was nothing left to be decided by another Industrial Tribunal between these parties.

Assuming, however, that the Tribunal were right in allowing the amendment the question arises whether there has been any violation of Mrs Collins' rights. We find that, on the facts found by the Tribunal there was no violation of this right. We refer again to the findings of fact by the Tribunal in paragraph 26 of its decision. The argument on this point is reinforced by the case of Macarthys Ltd v Smith

[1980] ICR 672

. The European Court of Justice in paragraphs 14/15 of its judgment on pages 190/1 of the report deal with the principle that men and women should receive equal pay for equal work enshrined in Article 119. In that case the European Court of Justice concluded that that principle was not confined to situations in which men and women are contemporaneously doing equal work for the same employer. They said in the relevant paragraphs:

"The second question put by the Court of Appeal and expressed in terms of alternatives concerns the framework within which the existence of possible discrimination in pay may be established. This question is intended to enable the court to rule upon a submission made by the employee and developed by her before the European Court of Justice to the effect that a women may claim not only the salary received by a man who previously did the same work for her employer but also, more generally, the salary to which she would be entitled were she a man, even in the absence of any man who was concurrently performing, or had previously performed, similar work. The employee defined this term of comparison by reference to the concept of what she described as "a hypothetical male worker."

The detailed submission made on behalf of the employee on the hypothetical male worker point is set out more fully in sub-paragraph (d) page 683 of the report.

The Court of

Justice then stated:

"It is clear that the latter proposition, which is the subject of question 2(a), is to be classed as indirect and disguised discrimination, the identification of which, as the court explained in Defrenne v Sabena [1976] ICR 547 , implies comparative studies of entire branches of industry and therefore requires, as a prerequisite, the elaboration by the Community and national legislative bodies of criteria of assessment. From that it follows that, in cases of actual discrimination falling within the scope of the direct application of article 119, comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service."

In those circumstances the point of law advanced by Mr Collins on this appeal is not well founded. He submitted that where an employer treats a woman less favourably than someone perceived to be a man, who was engaged in like work, in the matter of pay on the ground of her sex, then the principle of equal pay has been violated. The true position is that the principle of equal pay for equal work, as a matter of the correct interpretation of Article 119, only applies where the comparator is in fact a man. In this case the comparator was biologically a women. It is not challenged by Mr Collins that biological gender is, for these purposes, determined as at birth. As Mr Bowers submitted, the "Perception test", as it may be described, was rejected by the European Court of Justice in Macarthys Ltd v Smith .

In those circumstances we dismiss the appeal and we allow the cross-appeal.