BOARD OF GOVERNORS OF BLESSED EDWARD JONES HIGH SCHOOL v MRS L E RAWLINSON [2003] UKEAT 0776_02_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0776_02_0603Case No Appeal No. EAT/0776/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BOARD OF GOVERNORS OF BLESSED EDWARD JONES HIGH SCHOOLAPPELLANTMRS L E RAWLINSONRESPONDENT
Before
Mr Justice Keith Mr B V Fitzgerald Mr D A C LambertDate 6 March 2003
[1]APPEARANCES For the Appellant MR SIMON GORTON (of Counsel) Instructed by: Messrs Allington Hughes Solicitors 10 Grosvenor Road Wrexham LL11 1SD For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT THE HONOURABLE MR JUSTICE KEITH The Applicant, Mrs Linda Rawlinson, works at the Blessed Edward Jones High School ("the School"). She is employed by the School's Board of Governors ("the Board of Governors"). On 19 April 2001 she presented a complaint to an Industrial Tribunal (as it was then called) against Denbighshire County Council ("the Council"). At that time she believed that the Council was her employer, not the Board of Governors. In due course, the Board of Governors was joined as an additional Respondent. Since Mrs Rawlinson had by then accepted that she was employed by the Board of Governors and not by the Council, her complaint against the Council was struck out, and it is proceeding against the Board of Governors only.[2]Mrs Rawlinson's complaint was described in her Originating Application as "equal pay for equal value arising out of sex discrimination". Although that language suggests that she was making claims under both the Equal Pay Act 1970 and the Sex Discrimination Act 1975 , an analysis of her complaint shows that her claim was being made under the Equal Pay Act 1970 only. In short, she alleges that she is being paid less than two men who are employed by the Council as bursars at two other schools. They are Jim Jones, the bursar of Prestatyn High School, and John Jones, the bursar of Brynhyfryd High School. The Board of Governors took the point that the two bursars were not appropriate comparators, and it was ordered that that issue should be decided as a preliminary issue. By a decision promulgated on 8 February 2002, an Employment Tribunal (as the Industrial Tribunal had then become) held at Flint determined the preliminary issue in favour of Mrs Rawlinson, and held that she could use the two bursars she had identified as comparators for the purposes of her claim. The Tribunal's decision was by a majority, the Chairman of the Tribunal being the dissenting member. The Board of Governors now appeals against the determination on the preliminary issue.[3]The facts which are relevant for the purposes of the preliminary issue can be shortly stated. Mrs Rawlinson is employed by the Board of Governors in a non-teaching capacity at the School. Her job title is administrative officer, but she claims to perform substantial duties such that her post equates to that of a bursar. Her salary is decided by the Board of Governors. The route by which that comes about is that the School is a voluntary-aided school within the meaning of the School Standards and Framework Act 1998 and schedule 17 to the Act provides for the staffing of such schools. Para 20 of schedule 17 governs the appointment of non-teaching staff, and para 20 (1) provides that such staff "shall be employed by the [school's] governing body under a contract of employment on such terms as [the governing body] thinks fit." The evidence before the Tribunal was that the Board of Governors took account of national pay scales for non-teaching staff when fixing the salary levels of non-teaching staff, but that it did not have to implement those national pay scales.[4]The local education authority for the area in which the School is used to be Clwyd County Council, but following the reorganisation of County Councils in Wales in 1996 Denbighshire County Council became the local education authority for the area in which the School is. In due course, it introduced a job evaluation scheme. Its employees were required to submit their job description, having had them approved by the employee's line manager, to be evaluated by a panel appointed by the Council. The Council decided to permit all persons employed in schools within its area, whether employed by the Council or not, to participate in the job evaluation scheme. Mrs Rawlinson decided to participate in the scheme, and in June 2000 she submitted to the Council her job description which had been approved by the School's headmaster. The Council's panel assessed Mrs Rawlinson's post on the basis of the job description which she had submitted, and evaluated her post as that of a SO2 bursar. Relying on that evaluation, Mrs Rawlinson then requested the Board of Governors to pay her what SO2 bursars were being paid. On 7 February 2001 the Board of Governors refused to do so.[5]Mrs Rawlinson's claim under the Equal Pay Act 1970 to be entitled to compare herself with the two comparators selected by her was bound to fail. It is unclear whether she is saying that she is employed on like work with the two comparators whom she names, or on work rated as equivalent with theirs, or on work which is of equal value to theirs; but whatever it is, she can only compare herself for the purposes of the Equal Pay Act 1970 with men who are employed "in the same employment" as her (see sections 1(2)(a), 1(2)(b) and 1(2)(c) of the Equal Pay Act 1970 ). The meaning to be given to the words "in the same employment" is set out in section 1(6) of the Equal Pay Act 1970 , which provides, so far as is material:
"Subject to the following subsections, for purposes of this section – … (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 men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated 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]."
The two bursars who Mrs Rawlinson names as comparators are employed, as we have said, by the Council, and the Council and the Board of Governors are not associated employers within the meaning of section 1(6)(c).[6]Accordingly, Mrs Rawlinson's representative applied for and obtained leave to amend her Originating Application to include a claim under Article 141 of the Treaty of Rome . The extent to which Article 141 allows claims which are not covered by section 1 (6) of the Equal Pay Act 1970 was described by Sedley LJ in Allonby v Accrington & Rossendale College [2001] ICR 1189 at para. 43 as a "large terrain which is still being mapped". But an example in the education field in which Article 141 was successfully used to overcome the limitations of section 1(6) of the Equal Pay Act 1970 is South Ayrshire Council v Morton [2001] IRLR 28, a case heavily relied upon by Mrs Rawlinson's representative in the Employment Tribunal and subsequently affirmed by the Court of Session at [2002] ICR 956 .[7]In that case, a female headteacher at a primary school employed by one local education authority was permitted to compare herself with a male headteacher at a secondary school employed by a different local education authority. The headnote to the case, which accurately distilled the essence of paras. 13 and 14 of the judgment of the Employment Appeal Tribunal, included the following passage:
"If there is a sufficient connection in a loose and non-technical sense between the employment of the Applicant and the comparator from another employer, so that they may be said to be in the same establishment and service, then the comparator selected within that umbrella may be a relevant one. Merely because the Applicant's employer has no power or control of the terms and conditions of employment of the comparator employed by another person, does not exclude the latter from being a relevant comparator in appropriate cases."
It was, no doubt, in the light of that that the majority of the Employment Tribunal in the present case decided the preliminary issue in Mrs Rawlinson's favour. Thus, in para.

(v) of its extended reasons, the majority members said:

"We felt that there was what has been described as a sufficient connection in a loose and non-technical sense between the employment of the applicant and the employment of the employees she had chosen as her comparators and which were employed by [Denbighshire County Council]. We felt this even though there was no local control of non-teaching staff's pay and conditions."
[8]Since then, however, the European Court of Justice has identified the limitations on the successful use of Article 141. In Lawrence v Regent Office Care Ltd [2002] IRLR 822 , the Court said at paras. 17 and 18: 17 "There is….nothing in the wording of Article 141 (1) EC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer. The Court has held that the principle established by that article may be invoked before national courts, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public… 18 However, where, as in the main proceedings here, 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 (1) EC. The work and the pay of those workers cannot therefore be compared on the basis of that provision." The effect, therefore, of Lawrence is that an employee who seeks to rely on a comparator employed by a different employer must be able to show that a single body is responsible for the difference in pay, because if that cannot be shown, there is no body which is in a position to remedy that inequality.[9]Applying that test to the present case, the question to be asked is whether the body responsible for deciding what Mrs Rawlinson's salary should be was the same body who fixed the salary levels of her two comparators. The answer to that question is that it was not. The body responsible for deciding what Mrs Rawlinson's salary should be was the Board of Governors. There was no evidence in the Employment Tribunal as to the body which was responsible for deciding what the comparators' salary levels should be. The body may have been the Council itself, or it may have been a body responsible for fixing national salary levels; but the one thing which can be said is that it was not the Board of Governors.[10]If the test in Lawrence had been applied in Morton , it may be that Morton would have been decided differently. It is true that there was in Scotland at the relevant time a body (the Scottish Joint Negotiating Committee) which set the salary scales of all primary and secondary school teachers; but it was still open to each local education authority to decide how the salary scales were to be implemented in relation to its employees. As it is, we express no concluded view on whether Morton would now be decided differently.[11]In the light of Lawrence , which had not been decided by the European Court of Justice when the Employment Tribunal decided the preliminary issue, Article 141 did not permit Mrs Rawlinson to use the two bursars she had named as comparators. Accordingly, this appeal must be allowed, the decision of the Employment Tribunal on the preliminary issue must be set aside, and there must be substituted for it a decision that in Mrs Rawlinson's claims for equal pay under the Equal Pay Act 1970 or under Article 141 of the Treaty of Rome , she may not use Mr Jim Jones or Mr John Jones as comparators.