DEPARTMENT FOR ENVIRONMENT FOOD & RURAL AFFAIRS v MR G ROBERTSON & OTHERS [2003] UKEAT 0273_03_1012

"1(1) If the terms of a contract under which a man 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. 1(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a man is employed (the "man's contract"), and has the effect that – … (b) where the man is employed on work rated as equivalent with that of a woman in the same employment – (i) if (apart from the equality clause) any term of the man's contract determined by the rating of the work is or becomes less favourable to the man than a term of a similar kind in the contract under which that woman is employed, that term of the man'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 man's contract does not include a term corresponding to a term benefiting that woman included in the contract under which she is employed and determined by the rating of the work, the man's contract shall be treated as including such a term. 1(5) A man is to be regarded as employed on work rated as equivalent with that of any woman if, but only if, his 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. 1(6) Subject to the following subsections, for purposes of this section – (a) "employed" means employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly; … (c) two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control, and women shall be treated as in the same employment with a man if they are women employed by his employer … at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."

"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."

"permissible as within the same employment (Equal Pay Act 1970) or establishment or service (Article 141 of the Treaty"

"8. Before 1991 negotiations in respect of pay (and other terms and conditions of employment) for the entire Civil Service were conducted centrally. A very lengthy pay scale was applied as a result. … In 1991 the Chancellor of the Exchequer announced that responsibility for pay bargaining could be delegated to individual departments. The statutory authority for such delegation was confirmed by the Civil Service (Management Functions) Act 1992. Central bargaining had proceeded on the basis of an incremental system depending on length of service. This was abolished in respect of all bargaining, whether delegated or not, from 1992 and it was replaced by performance related pay, determined by reference to annual appraisals. Such appraisals normally grade staff on a range between 1 and 4 in descending order. We have seen at least one subsequent delegated agreement which granted the same percentage increase to all staff except those graded 4, but we accept that generally different pay increases are awarded to each different grade. There is no delegation in respect of Senior Civil Servants. 9. Delegation commenced in those large executive agencies with more than 2000 staff. That was extended to agencies with more than 500 staff. In 1994 it was announced that it was intended to delegate bargaining on pay and conditions to individual government departments. This was confirmed in 1995 and all central, treasury administered, bargaining ceased at the end of that year. From 1 April 1996 the function of establishing terms and conditions of employment was delegated to Ministers and, in turn, to Permanent Secretaries and Chief Executives of Agencies. The Civil Service Management Code was substantially revised to take account of these radical changes. ... 11. Before and after delegation job evaluation exercises were conducted and most departments used a scheme negotiated by the Treasury Trade Unions in 1992 which we shall refer to as JEGS. That scheme specified eight factors for evaluation on a point scoring basis. Those factors are: knowledge and skills; contact and communication; problem solving; decision making; autonomy; management of staff; financial responsibility; and impact. It is of course to be noted that it is in the nature of job evaluation exercises that some factors are likely to be weighted by means of a higher score range than others. It is also to be noted that the awarding of points under each head permits those conducting the differing evaluations in different departments to emphasise attributes of individuals which are more important to the work being evaluated both generally and in respect of the particular department specialisations and requirements. There was an evaluation in the Department of the Environment in 1995 and in the Department of Transport in 1996. 12 The process of transfer to new departments meant that groups of staff who had been subjected to different job evaluation exercises … were brought together and this necessitated pay and grading reviews in new and reorganised departments. In September 1998 all MAFF staff below Grade 5 were evaluated using the JEGS system as applied to 1240 benchmark posts. That is about 20% of the total of posts within that department. Included in benchmark selections were a number of SPS and PS posts. The following ranges were attributed to the posts with which we are mostly concerned: 214 AO posts graded between 220 and 308, producing a confirmed boundary for this grade of 210 to 320. 163 EO posts graded between 332 and 414, producing a confirmed boundary for this grade of 320 to 420. 7 SPS posts graded between 234 and 284, producing a confirmed boundary for this post between 320 and 420. 13 It is to [be] observed that there is clearly a considerable discrepancy between the scores achieved by SPS post holders and the established post boundary. In evidence it was accepted this could not be represented as the result of an analytical evaluation. SPS, work for Senior Civil Servants, mostly in Grade 3. 14 It was decided that the result of the SPS and PS grading should be the subject of a "follow up operation", and it is a central issue of dispute in this case as to whether that follow up should be regarded as continuation of the same job evaluation exercise or as a new job evaluation exercise. Before the second stage of the evaluation those with personal secretaries were "advised" to "enhance" the work of those secretaries. The obvious intention was to establish higher scores for the post holders so as to bring them within the grade range. It is important to note, however, that the review not only took account the effect of this enhancement but was also motivated by the supposition that the original seven benchmark posts were not typical. The review individually evaluated all 17 SPS posts in the department and scores between 282 and 342 were achieved. Nine posts secured more than the minimum 320 points fixed for the grade. Only two posts scored below the highest score in the 1998 evaluation of this post. The score in each of those two cases was only two points below that highest previous score of 284."

"Her Majesty may by Order in Council – (a) provide for the transfer to any Minister of the Crown of any functions previously exercisable by another Minister of the Crown. (ii) Civil Service (Management Functions) Act 1992 ("

"Act to make provision in respect of functions relating to the management of Her Majesty's Home Civil Service". "

"2(1) There are hereby transferred to the Minister the functions of the Treasury with respect to-… (d) the remuneration, expenses and allowances of persons employed in the service; holidays, hours of work, part-time working and other working arrangements in the service; … (h) so far as not transferred by the preceding sub-paragraphs, the terms and conditions of service of persons employed in the service."

"10. The Minister may from time to time make regulations and give instructions providing for the number and grading of posts in the Service, the classification of all persons employed therein, their remuneration, expenses, allowances, holidays, hours of work, part-time and other working arrangements, retirement and redundancy, the reinstatement and re-employment of persons in the Service, the re-deployment of staff within the Service and the conditions of service of all persons employed in the Service.

"delegated to Ministers … (b) to determine in respect of home civil servants in their respective departments the number and grading of posts outside the Senior Civil Service and the terms and conditions of employment in so far as they relate to the following: (ii) remuneration and allowances, with the exception of the Senior Civil Service … (v) holidays, hours of work and attendance."

"2. This delegation is made subject to the condition that the delegate will comply with the provisions of the Civil Service Management Code as amended from time to time." (vi) The Civil Service Management Code ("the Code"), there referred to, has been put before us. In material part it reads as follows: "

" PAY AND ALLOWANCES 7.1 Remuneration of Staff 7.1.1 Departments and agencies have authority to determine the terms and conditions relating to the remuneration (excluding pensions) of their own staff outside the Senior Civil Service and the payment of allowances to all staff, subject to the following conditions. Conditions 7.1.2 Department and agencies must develop arrangements for the remuneration of their staff which are appropriate to their business needs, are consistent with the Government's policies on the Civil Service and public sector pay, and observe public spending controls. … The arrangements for the remuneration of staff must be developed in conjunction with the arrangements for organisational change … and reward systems, and must reflect the following key principles: value for money from the pay bill; financial control of the pay bill; flexibility in pay systems; and a close and effective link between pay and performance; taking account of the inter-relationship between pay, pension provision, leave, and other terms and conditions. A department or agency proposing major changes to its pay and grading arrangements must submit a restructuring business case to the Cabinet Office."

"3.26 The Government proposes to extend this policy, so that by April 1996 responsibility for the pay and grading of staff below senior level should be delegated to all departments and the existing national pay arrangements replaced. …. Such delegation will be a very important step, assisting departments and agencies to achieve additional efficiencies, to improve delivery of services in accordance with the principles of Citizen's Charter, and to establish pay and grading arrangements which reflect the proper interests of staff. …"

"37. As a result of Delegation, around ninety departments now have responsibility for determining the terms and conditions and pay of their own staff. Each department enters into separate negotiations with the Unions with a view to reaching a Settlement (both in terms of pay and other terms and conditions) that reflects [its] own business needs and the priorities of its staff. Neither the Treasury nor the Cabinet Office is involved in these negotiations and Treasury approval of final settlements is not required … This process has inevitably led to significant variations in the terms and conditions (including pay) that are applicable in different departments. 38. The variations in salaries paid by different departments, to staff nominally at the same grade, highlight the extent to which terms and conditions diverged as a result of Delegation. Charts attached at Annex I show pay ranges for the current equivalents of the former 'Executive Officer' and 'Administrative Officer' grades in a number of different departments. 39. These variations in salaries demonstrate the extent to which departments have actively used the discretion afforded by Delegation, to introduce pay systems and negotiate pay Settlements (with the Unions) that best suit their particular business needs."

"… The degree of diversification is clear from the evidence before us. With some defined exceptions departments and agencies are free to negotiate and agree upon most terms and conditions of employment. Mr Carr graphically summarised the effect of this change by pointing out that 162 pages of the pre-delegation Civil Service Management Code had been reduced to 7 pages. Evidence had also shown that pay bands and minimum and maximum rates of pay now differ significantly from one department to another. Similarly, some departments establish only minimum and maximum and leave all points in between open to the effect of job performance factors. Other departments continue to provide a series of steps within each band. Specifically, in some departments holiday entitlement is expressed by reference [to] overall continuity of employment, whilst in others entitlement depends on grade of staff. A very considerable number of terms and conditions remain the same from department to department. Mr Carr, however, pointed out that most of this similarity was a matter of choice. This is particularly true of the type of job evaluation exercise to be applied. In [practice] the internally devised JEGS system is generally applied, but there is nothing mandatory about that. In any event it might make little difference to the question of discretion if JEGS was obligatory because it is likely that it could be modified from department to department to exclude, for instance, one or more of the eight elements of assessment it contains. It could certainly be modified by weighting those elements in the light of their importance to the work of a particular department."

"In our view ... the decision in Lawrence v Regent Office Care Ltd has sufficiently clarified the meaning of the application of Article 141 to "establishment or service" to permit us to say that that test requires existence of a common source of terms and conditions which can be said to be responsible for the terms and conditions which have been applied to employees (and in this sense responsible for the inequality) and capable of rectifying that inequality. We will consider in the next section our conclusion as to whether such a common source exists in respect of the Civil Service."

"sufficient emerges from the decision in [ Lawrence ] for us to say that the test there stated requires it to be shown that both claimant and comparator are within the control of a single legal entity which can be said to be both responsible for the alleged inequality and able to remedy it. We shall refer to this, as have others, as the control test": and (at 42) "

"In our view the Treasury, on behalf of the Crown, retains, and probably necessarily retains, ultimate total control. It has specifically retained, and continues to exercise, indicators of this control. A number of the indicators of this control operate, over and above any argument of central funding which we do not consider relevant to this decision. If we are right in our view of the nature of the control test we have no doubt that the Treasury gathers together all departments and agencies by its element of control into a single establishment or service within the meaning of Article 141. We have not mentioned, thus far, the placing on any emphasis on the word "service"

"13. Thus the answer to the first question should be that the principle that men and women should receive equal pay for equal work, enshrined in article 119 of the EEC Treaty, is not confined to situations in which men and women are contemporaneously doing equal work for the same employer." (c) the fact that in Town Investments Ltd v Department of the Environment [1978] AC 359 , a landlord and tenant case, Lord Diplock stated, for the purpose of construing counter-inflationary legislation relating to business tenancies that (at 385e): "

"17. There is, in this connection, nothing in the wording of article 141(I) EC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer … 18. However, where, as in the main proceedings here, the differences identified in the pay [and] conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment. Such a situation does not come within the scope of article 141(I) EC. The work and the pay of those workers cannot therefore be compared on the basis of that provision."

"40. In the recent Lawrence (…) judgment the Court noted that there is nothing in the wording of Article 141(I) EC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer. To that extent a comparison between her and a comparator at the College would thus be possible. 41. However, the Court also held in that judgment, as I also stated in my Opinion in that case, that where the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body 'which is responsible for the inequality and which could restore equal treatment'. … Such a situation does not come within the scope of Article 141(I) EC."

"differences identified in the pay conditions of workers performing equal work or work of equal value [can] be attributed to a single source", that "there is [a] body which is responsible for the inequality and which could restore equal treatment."

"School catering and cleaning staff employed by a local authority were, after a process of compulsory competitive tendering, transferred to the employment of the respondent companies, who paid them less than their previous wages. The applicants, female staff so transferred and other employees of the respondents, brought proceedings seeking equality of pay with male comparators still employed by the local authority whose work had been rated of equal value in a job evaluation study. An industrial tribunal held that the applicants could not rely on article 119 of the EC Treaty (subsequently article 141 EC) as giving them the right to bring claims comparing themselves with staff currently employed by a different employer, and the applicants' appeal was dismissed by the Employment Appeal Tribunal. On further appeal by the applicants, the Court of Appeal referred to the Court of Justice the question, inter alia, whether the applicants could rely on article 141(I) EC in the circumstances."

"group of undertakings or authorities under common control" but the requirement "to apply the same collective bargaining agreement. 37. … Where the pay terms of different employers cannot be traced to a single source, the United Kingdom Government submits, pay discrimination on grounds of sex cannot be confirmed on the basis of a purely legal analysis …." 38. The second problem that has been alluded to is that an employer who is accused of pay discrimination on the basis of sex, on the ground he pays his workers a lower rate than that received by comparators working for another employer, is not in a position to explain that difference or to explain why the difference in pay is objectively justified. For that reason also the Commission, [the respondent] and the United Kingdom Government take the view that a difference in remuneration must be traceable to one source alone. …" 40. … With regard to the 'same service', the United Kingdom notes that the Court of Justice has never defined that concept, although it follows from the wording used by the court in a number of judgments that, at least in the private sector, it has had in mind a single undertaking."

"Senior grades in the Civil Service remain subject to central Treasury salary and terms fixing. Whilst it may be suggested that we are concerned only to [consider] the effect on those staff whose terms and conditions have been delegated it is our view that control of senior grades is bound to have a certain amount of effect on the ceilings available for negotiation in lower grades". (ii) The Remit . (Paragraph 17) … "each Department [must] submit to the Treasury an annual remit showing how proposed changes in terms and conditions, and particularly in pay are to be funded. The Treasury will scrutinise the remit to ascertain whether it is affordable within administrative costs limits and will not 'trigger other spending concerns'. Each bargaining unit will be expected to justify the level of remit and the proposed remuneration package against the guidelines on reform, pay policy and affordability."

"It is also true that the Treasury requires submission, before each negotiating round, or a 'remit'. It is said that the Treasury will only exercise a monitoring function in relation to that remit by ascertaining whether it complies with certain general principles. In evidence one example was put before us where it appeared that the Treasury had gone beyond this, but so far as we know that example stands alone. We would be surprised if departments submitted remits to the Treasury without careful consideration of whether they would be accepted. The fact, therefore, that it does appear that the Treasury specifically asks only for satisfaction on general principles is, in our view, by no means conclusive of the fact that that is all the Treasury is interested to ascertain. It seems to us unlikely that the Treasury would fail to question apparently unreasonable distribution of the available finance for the total wage bill across the range of staff. There is no doubt in our mind that it would have power to do so if it wished. The detail required in a remit would not necessarily reveal unreasonable distribution, but it seems to us likely in practice that the remit would be capable of raising suspicions of such inequality if it occurred."

"48. If the Treasury/Cabinet Office is satisfied with the business case put forward, the pay remit will be submitted to the Chief Secretary for approval. On receipt of approval, departments can then commence formal negotiations with the Unions, with a view to securing a pay settlement. As has already been stated above, neither the Treasury nor Cabinet Office is involved in those subsequent negotiations between departments and the Unions. Departments are required, however, to negotiate their settlements within the broad parameters agreed with the Treasury/Cabinet Office. 49. It is then up to departments to determine the detail of their pay arrangements. This will include, for example, the number of pay ranges; the progression arrangements for each pay range, including any progression points and target rates; the range minimum and maximum; how performance pay should be applied including the distribution between pay ranges and the sums involved, etc. Although departments should notify the Treasury of the outcome of their negotiations with the Unions, there is no requirement for their final Settlements to be approved by the Treasury." (iii) The Code . (Paragraph 17) "

"Delegation is also subject to the general principles set out in the Civil Service Management Code to which we have earlier referred. On behalf of the Respondent it was said that these were broad general statements of principle. That argument cuts both ways. The very broadness of the principle indicates the range to which it might be applied. As an example, and possibly in particular, the requirement of a link between pay and performance gives considerable scope to the Treasury to call in for consideration particular settlements." (iv) Pensions . (Paragraph 18) "

"Pensions and associated issues of disability payment are among the relatively few items which are still directly centrally controlled within the Treasury. This can be presented as an isolated reservation, but it can also be said to have a potentially significant effect on other negotiated terms and conditions. Outside the Civil Service, pension provision may well be an item in wage negotiation. The absence of department ability to include that element is bound to affect the scope of available negotiations." (v) Changes to Departments . (Paragraph 19) "

"Introduction In order to meet these guiding principles the Government believes that there must be a clear and consistent policy of the treatment of staff, founded upon the provisions of the Transfer of Undertaking … Regulations ... (TUPE). This Statement of Practice sets out the framework that the Government expects all public sector organisations to work within to achieve this aim … Transfers and Reorganisation within the Civil Service 21. Reorganisations and transfers between central Government departments and agencies (i.e. within the Civil Service) do not involve a change in employer and TUPE therefore cannot apply. However terms and conditions of employment do vary between different departments and many of the considerations addressed in the Statements for other types of transfer may also apply. 22. As a matter of policy, therefore, such reorganisations and transfers between central Government departments will be conducted on the basis that – (a) as a general rule, when functions are transferred from one department to another staff will be transferred with the work; … (b) departments should ensure that wherever possible the principles of TUPE are followed. The existing terms and conditions of staff cannot be changed unilaterally; … (c) over time, the receiving department may aim to move, through negotiation with staff, toward fuller alignment of the terms of transfer of staff to those of the main body of staff."

"Finally, the government demonstrates that it is the government not least by relatively frequent 'machinery of government' changes. As we have seen in this case, large blocks of staff are moved and merged with staff who have been working under different terms and conditions. Subsequently the terms and conditions of one or more such groups will have to be assimilated with other groups. The fact of such centrally inspired movement does not directly affect the fact of delegation to the department which has to make the assimilation. Nevertheless it seems to us that the need to make that assimilation significantly and adversely affects the extent of that delegation."

"body which is responsible for … inequality and which could restore equal treatment."

"the element of central control no longer exists"

"single source or the body which is responsible for the inequality and which could restore equal treatment:" not least when the Tribunal has (correctly in our view) started from the premise that there is no longer a "single source" (ii) This leads on in paragraphs 44, 48 and above all 49 of the Decision to the Tribunal laying all its emphasis on the existence of some control in the Treasury. Quite apart from the fact that there is what Mr Underhill QC has referred to as speculation in these paragraphs, the very evidence to which the Tribunal refers underlines the absence of any evidence at all that the Treasury can be said to be the single source of the terms and conditions. The Tribunal refers, in paragraph 44, to the assertion that the Treasury will only exercise a monitoring function in relation to the remit by ascertaining whether it "complies with certain general principles" (with a reference to the one example – presumably the occasion referred to by Mr Lewtas – when it appeared that the Treasury had gone beyond this "but so far as we know that example stands alone"). The Tribunal therefore accepts that: "it does appear that the Treasury specifically asks only for satisfaction on general principles" but this, the Tribunal suggests, is: "by no means conclusive of the fact that that is all the Treasury is interested to ascertain"

"seems to us unlikely that the Treasury would fail to question apparently unreasonable distribution of the available finance for the total wage bill across the range of staff … there is no doubt in our mind that it would have power to do so if it wished ... the detail required in a remit would not necessarily reveal unreasonable distribution but it seems to us likely in practice that the remit would be capable of raising suspicions of such inequality if it occurred."

"3. Where the sanction of the Minister for the Civil Service is required for the exercise of a statutory power which relates to the management of home civil servants, I hereby, on behalf of the Minister, authorise its exercise without his specific sanction to the extent specified in paragraph 1 and subject to the condition in paragraph 2."

"3. A local authority may delegate all or any of their powers, except the power to make a rate, to a committee, with or without conditions or restrictions. A local authority may revoke or alter any power given by them to a committee. A local authority may, if they think fit, appoint and designate one committee as their executive committee. An executive committee shall have all the powers of the local authority, except the power to make a rate, and may, if they think fit, appoint a sub-committee or sub-committees, and delegate to them all or any of the powers of the executive committee, with or without conditions or restrictions, and from time to time revoke or alter any such delegation, and appoint the number of members by whom the powers of a sub-committee may be exercised, and add to or diminish the number of the members of a sub-committee, or otherwise alter the constitution thereof, and fill up or provide for the filling up of vacancies therein, or revoke the appointment thereof and appoint another sub-committee or other sub-committees, and lay down rules for the guidance of a sub-committee, who shall act accordingly."

"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts: it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word 'delegate' means little more than an agent. The notion, therefore, that the use of the word 'delegate' implies that the executive committee parted with their own authority is misconceived."

"the Ministry expressly retain[ed] the authority to decide whether the particular premises should be requisitioned or not. In my view a delegation made in these terms and subject to these conditions did not amount to any denudation of any powers in the Ministry of Health."

"… even if the original requisition were invalid as having been made in excess of the powers delegated by the Minister to the local authority, their action was subsequently ratified by the Minister. The position between the Minister and the local authority was that of principal and agent or is a position so analogous thereto as to make the ratification good. The Minister could not transfer his status as a competent authority to the local authority. What he could, and did, do was to delegate to the local authority his function to take possession of land. But a delegation does not divest the Minster of his powers, and, therefore, the Minister himself retained the powers to requisition the land himself or to ratify the requisition by the local authority done in excess of authority. See Huth v Clarke where Lord Coleridge CJ said 'Delegation does 'not imply a denudation of power and authority' and Wills J said 'The word 'delegate' means little more than 'an agent'."

"mere executive directions but delegated legislation with statutory force, conferring powers on the corporation which they would not otherwise have possessed" and that (at page 369) "

"In any area of local government, where the Minister had by his legislation transferred such powers to the local authority, he, for the time being, divested himself of those powers, and , out of the extremely wide executive powers, which the primary delegated legislation contained in reg.51, para 1 had conferred on him to be exercised at his discretion, retained only those powers, which in his sub-delegated legislation he had expressly or impliedly reserved for himself."

"view of the learned judge that by the letter … of … August 20, the Minister of Health himself requisitioned and thereby came into possession … on the ground: (a) that he had not in his sub-delegated legislation reserved powers so to act" [the Huth contention rejected] ; "(b) that neither the corporation or its town clerk was acting as his agent" [the agent and ratification point rejected] ; "and (c) that he did not in fact then requisition, or take possession" [the point alone relied on by Jenkins J]."

"Reference was made to the case of [Locker ], but the court had there to consider the effect of a general delegation to local authorities of the minister's power of requisitioning affected by circulars which laid down what amounted to a code of regulations and restrictions governing the exercise of the delegated powers. I do not think it follows from that case that every delegation of power to requisition, however specific, and in particular even a delegation of power to requisition one particular house, is a legislative act. Still less does it follow that the power of delegation … can only be exercised by the minister himself personally, the mode in which the power should be exercised … being an aspect of the matter with which the case of [ Locker ] was not, as I understand it, concerned."

"The minister is not bound to give his mind to the matter personally. That is implicit in the modern machinery of government: see [ Carltona ] …. It is sufficient if one of the officials of that department brings his mind to bear on the propriety of it. When the government department delegates its functions to a town clerk … it is really only putting someone in its place to do the act which it is authorised to do. The town clerk is, so to speak, an agent of the department and a sub-agent of the Crown. [A contention raised by Wills J in Huth which had not found favour with the Court of Appeal in Locker and was in any event not a part of the conclusion of either of the other two judges in Roberts. ] The delegation to the town clerk is simply administrative machinery so as to enable the ministry's function of requisitioning to operate smoothly and efficiently; and, like all administrative functions, the act of delegating can be exercised by any authorised official of the government department. The delegation, whether general or specific, is not a legislative act, but an administrative one …; and it does not divest the government department of its powers (see [ Huth ] ... and [ Gordon Dadds ]). Having regard to those authorities, I cannot agree with the observations of Scott LJ to the contrary in [ Locker ]. They were, I think, unnecessary for the decision, which turned on the fact that the town clerk there acted outside his actual authority and his action could not be ratified."

"Nevertheless, it has sometimes been stated that delegation implies a denudation of authority [there is a footnote reference to Locker, to two academic writings which have not been referred to me and to Winder ]. "

"In general, a delegation of power does not imply a parting with authority [apart from a specific statutory provision in the local authority's field, there is only reference to Winder : Locker is referred to in the footnote but it is stated "

"The case has been criticised by writers [the only reference is to one article in 1952 68 LQR 363 by R Jackson entitled "

"A statutory power to delegate will normally include a power to revoke the delegation when desired. While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it concurrently with the delegate."

"the essence of what Scott LJ was saying in Locker should not be dismissed so easily"

"… the grading structure is established first and individual jobs fitted into it. A broad description of each grade is drawn up and individual jobs considered typical of each grade are selected and 'benchmarked'. The other jobs are then compared with these benchmarks and the general description, and placed in their appropriate grade."

"38. The Applicant contends that the 1998 and 1999 JEGS exercises in MAFF constituted two separate job evaluation exercises and that, under the first, the AOs in these proceedings (Mr Alexander and Mr Holder) are entitled … subject to possible genuine material factors to comparison with Ms Cooper. The Applicants accept however that if they are right in this contention the second job evaluation exercise in 1999 re–graded Ms Cooper, and from that date the AOs will be unable to seek further comparison with her. … 39. Mr Carr submits that it is legitimate for a job evaluation process to identify a fault in the benchmarking or other aspect of the analytical process and to rectify that fault, by reassessment if necessary. He also draws attention to evidence before this Tribunal that, as regards Ms Cooper, no changes were made in the contents of her job between its comparison in 1998 with seven benchmark jobs and its individual assessment in 1999. This is consistent with evidence supporting the submissions that at least one reason for the reassessment in 1999 was the feeling that the benchmark [s] chosen in 1998 were not representative of the thirty or so SPS posts in MAFF and that it was this flaw that the 1999 survey revealed … 50. Our conclusion is that there were, within MAFF, two separate job evaluation exercises, one in 1998 and another in 1999. The 1999 evaluation of SPS posts reflected the enhancement that had taken place in that grade. It is that change in job content which, in our view, separates it from the 1998 review. We do not consider it relevant that any particular post was, or was not, significantly enhanced. The exercise was one of evaluating the grade to which the posts were attached. It follows that Ms Cooper was evaluated in 1998 subject to the benchmarked evaluation exercise [it seems common ground that this should read "

"28. The 1998 JEGS report indicated that the 7 SPS posts, selected as benchmark jobs, did not appear to be doing work that MAFF would normally require of an SPS and that the JEGS scores of the individual benchmark posts varied considerably. In my view, this could have occurred for one or more of the following reasons: (a) The design of the post may have changed since they were originally appointed as SPSs; (b) The posts may have remained the same, but the business, and the jobs relative value within it, has changed; (c) The post holders may not be undertaking the job to the level at which it is designed; (d) The posts selected as benchmarks are not typical and more job evaluation evidence is required (this is particularly relevant to secretarial type roles where job content and, therefore, job quality can vary a great deal. 29. In such a situation, it is common practice for a further wider ranging assessment to be carried out. Such an assessment would look at a larger number of the posts in question so as to provide a more accurate assessment of the average weighting of the post. 30. This was in fact what MAFF decided to do. A further review of all 17 SPS posts in MAFF's headquarters was carried out in 1998/1999. In this review the same JEGS standards as those in the initial review were applied. The SPS review compared the jobs and resultant JEGS scores to the original benchmark jobs used in the initial review. It is therefore possible to directly compare the JEGS scores of both the initial and subsequent review as this was an extension of the original job evaluation study (see (v) A JEGS 'Single Study')."

"Senior Personal Secretary; 7 posts were evaluated – the scores ranged from 234 at the lowest to 285 at the highest. The average score for the grade was 258. All posts were assessed as below grade. Some posts were only marginally better than their PS counterparts. Those in Legal Group were better quality, where the SPS, unusually, had staff to manage. SPS posts when assessed against grading guidance should be expected to carry out around 50% equivalent EO duties: this was not evident in the posts evaluated. Further work involving a wider, or possibly 100%, sample will be required."

"SPS JEGS EXERCISE The background to the exercise is that as part of the 1997 Pay and Grading Review, SPS posts were evaluated along with others using JEGS methodology. The review found that none of the seven posts reviewed were of sufficient job weight for the grade … The current exercise was arranged to review all SPS posts so that decisions could be taken on whatever adjustments were needed to posts, based on up-to-date information rather than relying on information from a couple of years ago."

"further work involving a wider, or possibly 100%, sample will be required."

"also motivated by the supposition that the original seven benchmark posts were not typical" and at paragraph 39 that "at least one reason for the reassessment in 1999 was the feeling that the benchmark[s] chosen in 1998 were not representative"

"not consider that it can be said that the 1998 evaluation had not come to any conclusion upon the evaluation of SPS posts … upper and lower and average values were declared for them"

"at the position of a particular employee at a particular point in a particular salary grade"