Leeds Drug Project v Kidney [1996] UKEAT 1187_95_1007

EAT

Leeds Drug Project v Kidney

[1996] UKEAT 1187_95_1007 · 1996-07-10

MR JUSTICE BUCKLEY : Mrs Kidney applied to the Industrial Tribunal at Leeds complaining that she had been discriminated against as far as her pay was concerned by the respondents, the Leeds Drug Project. By their decision of 12th September 1995, the tribunal decided unanimously that Mrs Kidney was employed by the respondents on like work with two men who were taken as comparators in the same employment. They were Messrs Plummer and Stuart. They also held that the respondents had failed to prove that the variation between the contracts of the applicant and her comparators was due to a material factor which is not the difference of sex. They declared that the applicant was entitled to be paid the same rate of remuneration as her comparators. They identified what that was from, and this part of the decision says November 1994, it is abundantly clear that from the calculations and all the other documents that is a typing error which we will assume, so its from November 1993 until June 1995, and they arrived at figure.

The Leeds Drug Project appeal to us on the basis that the tribunal went wrong in law. As is apparent neither party attends. We have a letter both from UNISON who were representing Mrs Kidney and Mrs Kidney herself, to say that UNISON no longer represent her and that she cannot get here, and in effect they invite us to deal with the matter in their absence, and UNISON have sent written submissions on her behalf.

The appellant has also written to say it will not be attending either, but has sent us helpful written submissions and skeleton argument and refers us to a couple of authorities. So, we are left to deal with the matter on the strength of the written submissions. We have no objection to that.

Turning to the tribunal's reasons, what they found in summary form was this. That the Leeds Drug Project is a company limited by guarantee and a registered charity and it provides counselling to people with addiction problems and they are funded by outside entities and Leeds Social Services, Leeds Health Care and so forth. They have part-time unpaid directors and a professional manager and staff. The tribunal found that the applicant began working for the project in September 1993 as a project worker, that her salary was fixed by reference to a scale, the local government spinal column, points 24-28. She started at the bottom of the scale on point 24. We quote from paragraph 3 of the decision:

"3. The applicant worked full-time for the respondents but was actually employed by an agency, Reed Care, which was reimbursed by the respondents for her salary."

In the Summer 1994, the appellant advertised two posts, a permanent project worker post, and a temporary development post. The respondent applied for them. She was unsuccessful in her application for the project worker post, but was offered and accepted the temporary development post. That was to run initially for six months, but was in fact extended to 30th June 1995, that was the date when the respondent duly left.

The tribunal goes on to find that she ceased to be paid by the agency as from 13th September 1994 and was paid directly by the appellants from the time she took up the post. The pay remained at point 24 on the scale. It had apparently been anticipated that her duties would change, but in practice, according to Mr Plummer who gave evidence for the appellants, she remained engaged on the same work as he did.

In November 1994 a Mr Stuart, to whom we have already referred, was appointed to the project worker post that the respondent had been unsuccessful in obtaining herself. He was paid at point 25 on the scale, various promises were made both to him and Mr Plummer about increases which did not at least immediately materialise.

It was conceded on behalf of the appellants, in particular perhaps in the light of the evidence that Mr Plummer seems very fairly to have given, that at all material times the Mrs Kidney was employed on like work with the two male comparators that we have mentioned, and in the same employment. It was also agreed that they were paid throughout at a higher point on the local government spinal column. The tribunal held that those facts inescapably led them to the conclusion that the terms of remuneration in the respondent's contract were less favourable than the corresponding terms in the contracts of her comparators, and that the respondent's contract must be treated as containing the same terms as to remuneration pursuant to the Act, unless the appellants were able to prove that the variation was genuinely due to a material factor which was not the difference of sex, and that factor is a material difference between the applicant's case and those of the comparators.

The tribunal concluded therefore that, the appellant was in breach of the Equal Pay Act 1970 in failing to pay the respondent on the same scale as her comparators. That in the event was not really in dispute and in the light of Mr Plummer's evidence could not seriously have been so. It is not sought by the appellants to challenge those findings on this appeal.

The next point that the tribunal had to consider, and is the point which is taken on the appeal, is the question of the appropriate period for which the respondent was to be compensated. The respondent's representative, Mr Baker, submitted to the tribunal that she should be compensated for the whole period during which she was engaged on like work. That is from the date that Mr Plummer commenced work in November 1993 on point 25 of the scale. Mr Plummer, for the appellants submitted that the earliest date from which compensation should be calculated was 13th September 1994. It will be recalled that that was the date upon which the respondent commenced employment with the appellants on the tribunal's findings, and that before that date she was not employed under a contract of employment with the appellants, but had been employed by the Reed Care Agency.

The tribunal accepted Mr Baker's submission. Essentially because Mr Baker was able to point out that the appellants assumed, or he submitted had assumed responsibility for the respondent's salary when it decided in April 1995 to pay her at point 25, and that it effectively back-dated that to April 1994. A time when she was still employed by the agency. Mr Baker had submitted and the tribunal accepted that indicated that the appellant was in a position to fix the rate of remuneration even when the respondent was employed by the agency, and that it exercised its power to do that, to cover that earlier period, therefore the appellants were in a position to ensure that she did receive equal pay and it failed to do so. It was in those circumstances that the tribunal ordered the appellants to pay compensation for the whole period.

That really is the point that is challenged by the appellants, and it refers us to various authorities on contracts of employment with reference to the Equal Pay Act 1970 and so forth. The short point that it is making is that on these findings it is plain that Mrs Kidney was only employed by these appellants from September 1994.

It is necessary only to look at one further aspect of the tribunal's findings which touches this very point, and it was the aspect of Mr Baker's submissions that persuaded the tribunal. It appears at paragraph 8. What happened was that in February 1995 a Mr Sanders left the appellants and Mr Plummer became acting manager. In March 1995 he wrote to Mr Hill, who is the Chairman of the appellants, stating his view that the respondent was being discriminated against. He noted that by this time, 1995, the respondent was genuinely employed by the appellants. Mr Hill replied in April and his reply is set out in full in paragraph 8, it is only necessary for us to refer to the last two short paragraphs of the letter in these terms:

"However, the Management Committee is prepared to consider Irene's [ Mrs Kidney's ] period of employment with Reed Care while she was placed with LDP, as a qualifying period for increments. This concession applies to increments only, and does not imply that the period of employment with Reed Care will count as continuous employment with LDP for any other purpose.

In the light of the policy decision on increments, and the decision in the previous paragraph, Irene's pay will be calculated based on an entitlement to an increment on 1 April 1994 (ie spinal column point 25) and a further increment on 1 April 1995 (ie spinal column point 25)."

That is what happened, and in the appellants' submissions to us, it is accepted that it should pay compensation but it says only from September 1994 when the respondent was employed by the appellant. That this reply and the appellants' acting on it as it appears to have done, this reply from Mr Hill is in effect a wholly insufficient basis in point of law for concluding that the compensation should be extended to cover a period when the respondent was not employed by the appellants. The letter makes it plain the sole purpose for which it is back-dating, and that cannot in law have the effect of constituting Mrs Kidney an employee or even a deemed employee during the earlier period when she was employed by the Reed Care Agency.

We are satisfied that the appellants' submission on that is clearly right. The terms of Mr Hill's letter are plain, and there is no basis in our judgment in point of law for the conclusion that the tribunal came to that by gratuitously making the concession they did, the appellants had in some way altered the contractual position between the parties so as to make itself liable to pay compensation during that earlier period. That leads to the conclusion that this appeal must be allowed.

We have considered whether it is a case in which we can simply give an answer ourselves. We have decided unfortunately that we cannot, because we are not quite clear as to precisely what has happened on the back-dating of pay and for what period a higher rate has been paid. What we do is indicate that the appeal is allowed, that the compensation should be paid for the period from September 1994 onwards as the appellants submitted to the tribunal and has submitted to us. That, we are satisfied ought to be enough for the parties to resolve the matter without any rehearing. If it is necessary to go to a rehearing, the tribunal should be able to put a figure on that without much difficulty. But we feel unable to do so ourselves for the reasons we have given.