MRS ANGELA MORGAN v MIDDLESBROUGH BOROUGH COUNCIL [2004] UKEAT 0375_04_2211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0375_04_2211

Case No Appeal No. EAT/0375/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS ANGELA MORGANAPPELLANT

MIDDLESBROUGH BOROUGH COUNCILRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MR D SMITH

MR S M SPRINGER MBE

Date 22 November 2004

[1]APPEARANCES For the Appellant MR E LEGARD (of Counsel) Instructed by: Messrs Archers Solicitors Barton House 24 Yarn Road Stockton on Tees TS18 3NB For the Respondent MS J WOODWARK (of Counsel) Instructed by: Middlesbrough Borough Council Legal Service PO Box 99 A Municipal Buildings Middlesbrough TS1 2QQ MR COMMISSIONER HOWELL QC This is an appeal by Mrs Angela Morgan against the decision of the Thornaby on Tees Employment Tribunal on a preliminary issue, set out in a statement of extended reasons sent to the parties on 11 March 2004. In that decision the tribunal held, after 10 days of hearings spread out over February, July and September the previous year and deliberation on two further days in November and December 2003, that for the purposes of the claim she had brought against the respondent Council under the Equal Pay Act 1970, Mrs Morgan had not shown herself to be employed on like work with either of the two male comparators she selected, a Mr Mell and a Mr Bevington. It is accepted that the tribunal's finding against her on the comparison with Mr Bevington is not open to challenge on any point of law and the appeal is pursued only in relation to the comparison between her work and that of Mr Mell,.

[2]Mrs Morgan was at all material times employed by the respondent Council as a primary school clerk or administrator. Mr Mell and Mr Bevington were or had been administrators in secondary schools, in Mr Mell's case from 1996 to 2000 and in Mr Bevington's case at all material times. The secondary schools where they worked were much larger than the primary school in which Mrs Morgan worked, and the tribunal found they each had what it called a more strategic and managerial role, in particular on matters of finance: there were other staff who attended to day to day administrative matters involving children and their parents, whereas these were included in the role of Mrs Morgan as the sole clerk/administrator in her primary school. It was agreed that the employment of all three at their different schools counted as "the same employment" for the purposes of sections 1(2) and (6) Equal Pay Act 1970.

[3]Mrs Morgan's claim under that Act was that she was employed on like work with both secondary school comparators, and was entitled to have her terms of employment modified so as to be not less favourable than theirs. The aspect of which she complained was the number of weeks during the year she and the comparators were required to work and for which they were paid. Her terms of employment were for 41 weeks of work in each year (the school terms and three additional weeks) plus 7.4 weeks of paid holidays annually, adding up to 48.4 weeks for which she was remunerated. The secondary school administrators had contracts on a year-round basis so that in each year there were 52 weeks (or strictly, 52.143) for which they were remunerated, of which 44.6 were weeks they were required to work and 7.4 were paid annual holidays. In Mr Mell's case however this comparison has to be qualified as his working hours were much shorter: all of Mrs Morgan's 41 working weeks were the standard 37 hours for a full-time employee, but Mr Mell's employment during the 44.6 weeks he worked was for 22.5 hours only. It is to be noted that her hourly rate (in terms of a bare comparison of what each of them was paid annually divided by the number of hours their contracts required them to work) was actually better than his: her claim was that the shorter working year nevertheless made her terms less favourable. There are obviously difficult potential issues on what would be needed for "equality" in such circumstances if that stage of the Equal Pay Act claim were reached but those have not so far been dealt with by the tribunal in view of its decision on the preliminary issue that she was not employed on like work with either comparator she chose. Questions of equal value in relation to these and further suggested comparators were also raised but left by the tribunal for consideration at a later date.

[4]As already noted, the challenge in this appeal against that decision is limited to the suggested comparison with Mr Mell. It is conceded that so far as the suggested comparison with the other secondary school administrator Mr Bevington was concerned, the tribunal's finding that there were differences of practical importance in the work done was justified by the evidence, adequately reasoned and not open to challenge in law.

[5]It is also material to note that Mrs Morgan's Equal Pay Act claim was not an isolated one, but one of a number mounted on a collective basis with the backing of the Transport and General Workers' Union of which she is one of the local representatives. The aim is to establish the principle that the status accorded to the (predominantly female) "school secretaries", as they used to be called in the primary schools, is now out of date. In particular, the Council's continuing practice of employing this group of administrative staff on a "term time only" basis (sometimes with additional weeks and holiday entitlement as in Mrs Morgan's case), when male secondary school administrators generally have full-year contracts, is considered an historical anomaly. The union wants to see it eliminated now that some primary schools are as big as some secondary schools, and in both alike the work may now involve budgetary control and financial responsibilities unheard of in the old days, with correspondingly increased demands on those responsible for administration whatever the type of school. This was one of three "test cases" selected for the tribunal to weigh such arguments after the Council resisted changing the primary school administrators' contracts to a full-year basis. The Council's response had been that it considered the nature of the jobs done by its primary and secondary school administrators to be still materially different and a change to full-year working in primary schools such as Mrs Morgan's was not required or justified.

[6]There is an inherent risk with litigation mounted to establish a point of principle on a group basis in this way that the evidence and arguments on either side will also be presented as a collective whole, rather than case by individual case. We found some indications of this in the material we were shown, and in the tribunal's statement of reasons itself, with individual features of the work of particular primary school administrators seen as most favourable to their claims put forward in the hope of establishing that this must be typical of all; and conversely the heavy managerial role on administrators in large specialist secondary schools such as Mr Bevington being emphasised by the respondent in the hope of differentiating secondary school administration work as in a class of its own. It is therefore well to remind oneself, and we think it a legitimate criticism of the tribunal's stated reasons that they did not do so expressly, that although selected as a test case Mrs Morgan's application did still have to be determined by reference entirely to the specific facts of what her own job as an individual actually involved, as compared with each comparator she selected, also considered specifically as an individual. This was of particular importance given the undisputed evidence of wide differences in size and other factors between individual schools, both primary and secondary, so that care was needed in identifying and teasing out separately and individually the facts relevant to the claimant and each of her two comparators on the like-work issue.

[7]The general principles the tribunal was required to apply in this context are well settled law and were not in dispute between Mr Legard and Ms Woodwark, who appeared respectively for Mrs Morgan and the Council both at the tribunal hearing and before us. By section 1(4) of the Equal Pay Act 1970:

"(4). A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences."

As explained in a passage from the judgment of Phillips J when sitting as the President of the Appeal Tribunal in Capper Pass Ltd v. Lawton

[1977] ICR 83

, 87-88 referred to and adopted in many later cases, the test in section 1(4) in practice in most cases involves the tribunal in a two-stage inquiry. First, is the work of the same, or, if not, of a broadly similar nature? Secondly, if on a general consideration of the type of work involved and the skill and knowledge required to do it, the answer is that the work is of a broadly similar nature, it is then necessary to go on and consider the detail and inquire whether the differences between the work being compared are of practical importance in relation to terms and conditions of employment. At both stages a minute examination of detail and trivial differences not likely in the real world to be reflected in the terms and conditions of employment ought to be avoided. Furthermore, in considering the second question a difference between duties the man and woman being compared are contractually required to perform is relevant only insofar as it results in an actual difference in what is done in practice: it is the actual activities involved in the individual's job not the notional paper obligations that are important in ascertaining any relevant differences. In these two stages of the inquiry under section 1(4) the legal burden of proving that she is employed on like work with a man rests on the woman claimant, but if the first question is answered in her favour a practical and evidential burden of showing differences of practical importance rests upon the employers. It is only if she does manage to establish that the two questions are to be answered in her favour so that she is employed on like work with a man, that the third question on her Equal Pay Act claim arises under section 1(3), namely whether the employer can then prove that any variation between her contract and that of the male comparator is genuinely due to a material difference (other than the difference of sex) between her case and his: see in particular Shields v. E Coomes Holdings Limited

[1978] ICR 1159

, especially per Bridge L J at 1179E to 1180D.

[8]As recorded in paragraphs 16 to 25 of their extended reasons the tribunal had the benefit of lengthy written and oral submissions on the relevant law from both Counsel and a substantial citation of authority including the two cases just referred to: and there is no suggestion before us that the tribunal directed themselves other than entirely correctly in what they said in those paragraphs of their decision about the general principles they were required to apply. The issues between the parties, as defined in the applicant's notice of appeal and the respondent's notice in answer and the written and oral submissions made to us by both sides, were all concerned with matters on the detailed treatment by the tribunal of the evidence in the case when it came to applying those principles in practice: in particular whether the tribunal's decision as set out in its extended reasons demonstrated errors of law in failing to have regard to relevant evidence, reaching a perverse conclusion when such evidence was properly taken into account, failing to make and record sufficient findings of fact to justify the conclusion reached, or misdirecting itself in what was relevant to be taken into account or recording its reasoning in such a deficient way that such a misdirection had to be inferred.

[9]In assessing such arguments we must of course bear in mind, as Ms Woodwark quite rightly reminded us (indeed all the authorities she cited were directed to this point) that it is not the function of the appeal tribunal to retry the facts of the case or substitute its own view on questions of fact and degree such as those involved in an assessment of whether there is "like work" in an individual case or not; and that the reasoning of an experienced employment tribunal which has determined such matters after hearing evidence is not to be subjected to over minute literal examination so long as the overall conclusion reached is justified by the evidence and explained in broad terms sufficient for a reasonable person to understand the result.

[10]The 11 separate grounds in the notice of appeal relating to particular aspects of the tribunal's treatment of the facts were conveniently grouped for the purposes of argument into four main heads. These were first whether the tribunal misdirected itself on the issue of like work and the factors regarded as relevant in deciding it; second whether the decision was perverse or otherwise defective for failure to address, overtly at least, the evidence given by a Mrs Christine Watson (who was another primary school administrator but of a much larger school) and Mr Sean Hogg (who was the respondent's school support officer with responsibility for financial issues); third whether the tribunal had based its finding that the applicant and Mr Mell were not employed on like work on insufficient evidence; and fourth whether the tribunal's stated reasons were insufficiently analysed and expressed in terms of the required individual comparison between Mr Mell's employment and that of Mrs Morgan, particularly as nearly six months had elapsed between the hearing and the date the reasons were produced. In the course of the hearing before us Mr Legard (quite rightly) abandoned a further contention made in the notice of appeal that it had been perverse of the tribunal not to find "like work" in relation to Mr Mell by way of a presumption in favour of the applicant once broad similarities in their job descriptions had been identified and the Council failed to call him or produce sufficient detailed evidence to prove the work he undertook.

[11]To evaluate the arguments relied on it is necessary to refer to certain passages from the tribunal's extended reasons as follows:

" The Facts 15. The Tribunal found facts on a balance of probability after considering all the evidence both oral and documentary and after considering both written and oral submissions made on their behalf, as follows: (a) Generally all three test applicants' terms and conditions are under the National Joint Council for Local Government Services. All applicants are female and are paid on a pro-rata term time only basis. (b) Mrs Morgan's date of birth is 4 December 1959. She was employed from 9 September 1976 to date. Mrs Morgan is an administrative officer at Martin Manor Primary School which at January 1988 had a role of 188 pupils but currently had 211 pupils. She had a salary of £19,723.68 per annum and was graded SO1 on a scale of grades adopted by the respondent covering NJC spinal column point (SCP) range 29 to 31. Her salary is based on SCP 30. (c) A whole time employee on SO1 grade SCP 30 would receive £21,046.00 per annum. The applicant receives £1,322.32 less than this because she is classed as term time only. The term time payment is accumulated [sic] leaving the term time employee earning less per month than her whole time equivalent albeit for being required to work less time. The rate of pay per hour acknowledged to be worked is the same for the term time employee as it is for the whole term employee at the same grade SCP point. …. (f) Mrs Morgan has attempted to obtain full time status (pages 231 to 232) but this has not been successful (pages 241 to 242). The governors refer to any expansion of work outside of term dates (other than already established) as being neither necessary nor appropriate. That letter was signed by the Chairman of Governors but written from a draft prepared by Mr Harry Eagling (page 140) the respondent's Education HR Manager. It followed a request made by Mrs Morgan on 29 October 2002 (pages 231/232). (g) The applicant relies upon her job description (pages 438/439) broadly similar to her previous one (pages 94/95) for a description of the tasks she has undertaken. The primary functions display a strong financial emphasis in supporting the head teacher and providing an effective administration to the whole school. Principal responsibilities include modelling the school budget and an interface with head, governors, curriculum co-ordinators, pupils and staff. In evidence Mrs Morgan identified her principal responsibilities as those at paragraphs 1,3, 10, 14, 15, 20, 24 and 25 of the job description at page 438. … (i) In seeking to compare herself with Mr Mell, who is School's Administrator for Coleby Newham School, whose job description is at page 455, Mrs Morgan says she does not administer a mini bus but does administer lettings. In terms of the person specification at pages 511/512 for Mr Mell's replacement in the year 2000 she says there is nothing she does not have except an AAT accounting qualification. The post became SO1 full time. It had been an SO2. (j) We are given little information about Mr Mell's former employment from the respondent. Mr Hiser [human resources officer who gave evidence for the Council] described him as having been a part-time school administrator at Coleby Newham Secondary School until he retired in March 2000. He had been a Deputy Head Teacher who had retired and begun to work as a School Administrator in March 1996 on a casual basis due to the serious illness of the then existing post holder, who subsequently died. From June 1996 until July 1996 he worked 25 hours per week on a term time only basis. His contract was renewed for the Autumn term from September 1996, but in October 1996 he was given a permanent contract working 22½ hours each week on a whole time basis. Despite at the hearing in February 2003 instructing the respondent to produce documentation at the resumed hearing such as School Governing Body minutes or correspondence to show the reason or reasons for this change none has been produced. The respondent instead has produced samples of financial reports, budget plans and statistical analysis he and his successor Ms Lawton carried out and then presented to the Schools Governing Body (pages 583 to 646). The respondent then simply says that Mr Mell's functions were very similar to those of Paul Bevington. (k) With effect from 31 August 2002 Coleby Newham School and Brackenhoe School are being closed and are being replaced on 1 September 2003 by Kings City Academy. On the secondary school rol[l] for January 2002 (page 246) Coleby Newham is showing as having a total of 712 pupils. Mr Hiser in his evidence indicated that he had attended the Governing Body where Mr Mell presented figures, negotiated a cleaning contract and produced some prediction of GCSE figures. He did not do orders or invoices. He might have done budget reconciliation. He did do the system called SIMS. He did not do reception work. He was involved in plan maintenance projects, remedial projects, pupil forecasts. He did not act as an initial point of contact (item 15 on Mrs Morgan's job description), day to day organisation of the administrat[iv]e support to the head teacher (item 18 on Mrs Morgan's job description) incoming or outgoing mail (item 20 on Mrs Morgan's job description) or items 21 or 22 (see the job description for Mrs Morgan at page 438). (l) Summarising the differences that we found Mr Mell did not provide the function of receptionist, or typist or collect dinner money. An additional function on his part was in terms of predicting GCSE figures. The school was larger in terms of pupil numbers. In terms of the primary job description functions, however, the applicant Mrs Morgan and Mr Mell carried out a similar job albeit Mrs Morgan at a primary school of considerably less numbers and Mr Mell at a secondary school with larger numbers. While Mrs Morgan had additional functions they tended towards the more routine and lower grade jobs. Most fundamentally the hours were different. Mr Mell brought to the job skills that Angela Morgan did not have namely his experience as a deputy head teacher. (m) Mr Bevington's job description is at page 455 of the bundle. His principal duties were divided between finance and premises. He was regarded as part of the management team and had the title "

School Manager". He managed Kings Manor School, a comprehensive school for pupils aged 11 to 16 with a rol[l] at January 2002 of 1,102 (page 246). He has a degree in business administration. He has been expressly delegated the management of the school budget of over £3.5 million. Kings Manor is a specialist sports college and Mr Bevington is responsible for the maintenance of all the school buildings, services and equipment and the planning of repairs and renovations. The school is used by the respondents Leisure Services before and after school hours and at weekends and during the school holidays. Mr Bevington negotiates with the council over its terms for the use of the sport centre including rent and maintenance charges, hours of use of the centre and contributions to the costs of replacement of equipment. The premises include four floodlight tennis courts. He is the first point of contact for over 65 teaching staff who may have requests for additional resources, additional or replacement equipment or budget queries. He has functional responsibility for four other clerical staff. He is involved with a negotiation of contracts. He administers additional budgets and cost centres. He has no lower grade tasks such as reception, typing, collecting dinner money or other more routine tasks carried out by Mrs Morgan. He is able to carry out a more strategic role because of the availability of more junior clerks to carry out the routine tasks. (n) The emphasis of Mr Bevington's role for premises is a significant difference. His strategic role and his position as a member of the senior management team with others being available to carry out the more routine tasks we also found to be of significance. All the differences identified between Mrs Morgan and Mr Mell also exist in Mr Bevington's case but on a larger scale. He works full-time 37 hours per week. The job is on SO2, £20,966.00 to £22,195,00 with pay award pending. . .. . .. Conclusions 21. As the Tribunal found itself able to decide the matter on the basis of whether or not the applicant's were doing like-work with their comparators we have not gone on to consider and do not set out here the arguments pertaining to the issue of genuine material factor defence. We were not invited to make such conclusions so as to bind that issue when it comes, as it may, to a consideration of work of equal value and we think that that has to be right since under that heading there are additional comparators to be considered. We therefore confine our conclusions within this decision to the issue of like-work. We reached the following additional conclusions as to fact and law based upon our above findings of fact and arguments presented to us. … 23 ... there is an earlier question [than the genuine material factor defence] for the Tribunal to ask itself and that is whether the applicants and their comparators are doing like-work that is to say the same or work of a broadly similar nature and for the Tribunal to ask itself whether the things that they do which are different are of practical importance in relation to terms and conditions of employment. The essential difference in terms and conditions about which these applicants complain is that they are expected to work term time only whereas those in junior schools, that is to say their comparators, are on full time contracts. This has further impact in terms of pension, treatment of holidays and sickness. 24. There is a superficial attractiveness about Mr Legard's argument that the work is broadly similar in the sense that the applicants provide a service to their school and head teacher as do the comparators in their schools, but it is only by analysing the differences to determine whether these are of practical importance that one can establish whether the work is of a broadly similar nature. 25. We have accepted that the applicants do not have to point to a man at present employed on like-work or workers equivalent as long as there was a man employed on such work ( Sorbie v. Trust House Forte Limited ) or that there is any requirement that the men are fairly representative of a group of workers ( Pickstone v. Freemans plc and British Coal Corporation v. Smith ). 26. Analysing, therefore, the difference we were able to find that Mr Bevington and Mr Mell provided a service to secondary schools whereas the applicants provided a service to primary schools. Mr Bevington's school had a roll of 1,102 which contrasted with 188 for Mrs Morgan. Mr Bevington had no routine lower grade tasks such as reception, typing, collecting dinner money, maintenance and development of a filing system or the dealing with mail. While it was difficult to assess how much time Mrs Morgan or her co-applicants spent on these items they were clearly of a routine and regular basis. Mr Bevington had four people reporting to him. There was clearly a strategic role covered by Mr Bevington. He was part of the senior management team. The hours worked were different. Mr Bevington had several other cost centres and budgets to administer. There was a high emphasis in his case on the management of premises and services. Mr Mell's roll was 712 whereas Mrs Watson's [Mrs Angela Watson - another test applicant] was 355. Mr Bevington and Mr Mell prepared budgets whereas Mrs Watson did not. Again, in Mrs Watson's case lower grade tasks appeared to comprise a large part of her daily duties whereas they did not form part of Mr Mell or Mr Bevington's roles. We concluded that there was no real strategic role for Mrs Watson. She was not responsible for the maintenance and development or use of the school site whereas Mr Bevington in particular was. The hours were different. Mrs Reed was also employed in a primary school as opposed to the comparators in the secondary school. Her roll was 217 to 383. She did not do preparation of the budget. Unlike Mr Bevington and Mr Mell she did not attend governors meetings. She too had lower grade duties such as reception, telephone, collecting dinner money, handing out medication. Financial tasks in her case were downloaded and she passed on information rather than having a strategic role. She was not responsible for maintenance, development or use of the school site unlike Mr Bevington in particular. Her involvement in tendering was limited to telephoning around. Her hours were different. A point of similarity with Mr Mell was that she was interested in and advised on IT packages. Mrs Morgan also carried out routine clerical work not carried out by Mr Mell. 27. From the above we concluded that there were significant differences between the applicants and their comparators. These related to the scale of the operation (numbers of pupils and therefore number of staff, size of the budgets) and that this represented a practical difference of importance. We also concluded that the applicants did not have functional responsibility for others which was certainly the case in respect of Mr Bevington. Most particularly included with each of the applicants was a large amount of lower grade clerical tasks and whereas it was impossible on the evidence to determine exactly how much time they spent on these tasks it was clear to the Tribunal that by the very nature of them this had to be a significant amount of time. There was direct involvement of the applicants with parents and children which was not the case with their secondary school comparators. The secondary school comparators had a far greater responsibility in terms of contractual matters and involvement in the negotiation of contracts. In the case of Mr Bevington certainly and probably to a lesser extent by Mr Mell there was responsibility for managing premises. The two secondary school administrators had a more strategic role within the structure of the school and their whole time was spent on financial matters. Mr Bevington had a role which was more managerial in nature. Whereas the primary school administrators also dealt in financial matters it was on a smaller scale and their time involved many more lower grade routine tasks of the type that did not exist out of term time such as collecting dinner money, reception, dealing with post. In secondary schools these matters are dealt with by staff other than the male comparators. The very nature of the different functions suggests to the Tribunal that there was a significant amount of time spent by the primary school applicants on more routine matters as against a very more significant time spent by their secondary school comparators on managerial and financial matters. 28. While in Dorothy Perkins Limited v. Dance, Kilmore-Brown J stated: 'We feel that it is vitally important to reiterate … that it is no part of [a] tribunal's duty to get involved in fiddling detail or pernickety examination of differences which set against the broad picture fade into insignificance.' we are satisfied that the differences that we find are of practical importance. We do not see this as being too pedantic an approach, but it would not be proper to consider the duties that the man and a woman do not have in common as ones that should be excluded from consideration ( Maidment & Hardacre v. Cooper and Co Birmingham) Limited

[1978] IRLR 462

. The differences were not differences which were "in effect separate and distinct" as in Doncaster Education Authority v. Gill EAT 568/89. 29. We have considered the frequency or otherwise with which the differences occur in practice, their nature and their extent. We have looked at the differences in work actually done, how large those differences are and how often they operate. In particular, it is the Tribunal's view that the work of a more routine nature which the primary school administrators carry out is very much more term time related whereas the more strategic and managerial role carried out by their secondary school comparators is more appropriate for whole time work. Summary 30. In summary, therefore, we find that the work carried out by the applicants is not like-work or broadly similar to that carried out by their comparators because of the degree to which the applicants carry out routine, lower grade tasks as against the more strategic and managerial role carried out by their secondary school comparators. We find that these are differences of practical importance."

[12]We were none of us persuaded that the tribunal's omission to refer expressly to evidence relating to the employment of Mrs Christine Watson (who was not a test applicant) or the answers given in cross-examination by Mr Hogg the school support officer particularly in relation to the work done by her, was an error such as to render the decision itself perverse or erroneous in law. As is apparent from the evidence about Mrs Christine Watson to which we were referred, including the evidence in chief given in Mr Hogg's own witness statement at page 147, the school at which she worked with financial responsibility and the title of "bursar" was very much larger than the other primary schools; and Mr Hogg's explicit evidence was that she did not do the same job as Mrs Morgan, her financial responsibility being far more akin to that of an administrator in a secondary school. The detailed answers recorded in the course of a cross-examination where Mr Legard was quite understandably seeking to shake this express evidence did not in our view come near agreeing or establishing it as "common ground" that Mrs Watson performed "an almost identical role to that performed by the appellant" as asserted in the notice of appeal. On any fair reading of that evidence it was reasonable for the tribunal to conclude that the material differences between this Mrs Watson's work and that of the appellant made it unnecessary to refer to it or her in the specific comparison they were required to make between the individual cases of Mrs Morgan and Mr Mell.

[13]We similarly reject any criticism of the tribunal for having proceeded to determine the issue of like work in relation to Mr Mell without having evidence before it, of the kind apparently envisaged at the earlier hearing in February 2003 referred to in paragraph 15(j) above, to show why Mr Mell had been switched from his initial temporary employment on a term time basis from March 1996 on to a full-year basis from October albeit for a reduced working week of 22½ hours. (We should mention that Ms Woodwark did not accept there had in fact been any failure on the part of the Council to comply with a formal direction, a point unnecessary for us to resolve.) Such evidence would of course be highly relevant to any "genuine material factor" defence the employer might seek to establish at the third stage under section 1(3), where the burden of proving the actual reason would in any event be on it and the evidence for it to produce. But we were not satisfied it was an error of law for the tribunal to have proceeded on the first two questions without it, or to determine the question of like work on the evidence it did have from both sides about what Mrs Morgan and Mr Mell actually did, as distinct from the reasons why either or both of them had been appointed to do it.

[14]That therefore leaves the criticisms of the tribunal's stated reasoning and the points they appear to have taken into account in determining the issues of broad similarity of the work done, and whether there were differences of practical importance between Mrs Morgan's employment and that of Mr Mell. On this the majority of us have been persuaded by Mr Legard's argument that the tribunal, in placing their primary focus on the more obvious differences shown by the evidence between the work of Mr Bevington and that of Mrs Morgan in her role as sole administrator in a much smaller primary school, have failed to address and identify with sufficient clarity by way of a separate comparison what were the actual facts relating to Mr Mell's employment over the period from October 1996 until he retired in March 2000 that took it out of the "area of broad similarity" apparently accepted in the findings at paragraph 15(l); given the lack of evidence noted in paragraph 15(j), there was simply insufficient material to support the conclusion reached.

[15]In addition, the majority are further persuaded that the reference in paragraph 15(l) to the different hours worked and Mr Mell's special skills and previous experience as a former deputy head teacher as "most fundamental" shows the tribunal must have misdirected itself into taking these into account, or at the very least have fallen into error by failing to address and sufficiently explain what genuine relevance they could have, on the like-work issue which should be a simple factual comparison of work done. In particular, it is well established that the mere fact that different hours are worked or the duties are performed at different times of the day cannot determine whether the work itself is similar or different ( Shields v. Coomes, supra; Dugdale v. Kraft Foods Limited

[1977] ICR 48

: and while an individual's personal qualities and previous experience may be of obvious and direct relevance to any genuine material factor defence under section 1(3) at any third stage, they do not demonstrate that the actual job he is currently required to do is different from that of anyone else. For those reasons the majority have concluded that the submissions of Mr Legard on behalf of the appellant must succeed, and the decision of the tribunal in relation to the comparison with Mr Mell must be held erroneous in law for want of sufficient findings and reasons, and set aside.

[16]The minority member is not so persuaded: while agreeing that the tribunal's findings and reasoning in relation to the comparison with Mr Mell could certainly have been better and more clearly expressed if set out separately, he would not consider it right to infer any material misdirection or that the tribunal lost sight of the principles of law on which it is agreed to have directed itself correctly when it came to applying them and expressing its conclusions on the facts. The references in the summary of facts in paragraph 15(l) to the different hours worked and the different skills and experience of the two individuals ought in his view to be read in the context of the latter passages in paragraphs 27-30 where the tribunal explained what it found the material differences actually to be, and also of the whole basis of the complaint made in the proceedings, that Mr Mell was being employed on a year-round basis while Mrs Morgan's services were only required during the school term times albeit for a full day while pupils and their parents might need to be attended to, plus the extra three weeks for preparation and catching up. The crucial difference, as found by the tribunal, was that Mrs Morgan as the sole administrator in a relatively small primary school had to carry out routine tasks of the kind that involved being on duty at the school throughout the day during term time; while Mr Mell had a more strategic and managerial role in a much larger school and without these tasks, with his whole time spent on financial matters, less term time related and more apt to year-round work. That was a conclusion open to the tribunal in relation to Mr Mell as well as Mr Bevington and there was evidence, in particular that of Mr Hiser, to support it in relation to what Mr Mell did until his retirement in March 2000; though admittedly less detailed and up to date than that about Mr Bevington who was still in the Council's employment. It was also open to the tribunal applying its own judgment and experience to find this a difference of practical importance for the purposes of section 1(4), which the wording used in paragraphs 28-29 shows it had closely in mind. On those findings which appear clearly enough from the statement of extended reasons, the tribunal was right to hold the applicant had not established she was employed in like work to that of Mr Mell and its explanation was, in the minority member's view, sufficient to meet the standards we have summarised in paragraph 8 above.

[17]In accordance with the conclusion of the majority the appeal is allowed to the extent of setting aside the decision of the tribunal on the issue of like work in relation to Mr Mell. As both sides agreed had to be the consequence if that was our decision, we remit the case to the same tribunal for rehearing of that issue, together so far as necessary with any further issues arising on the "genuine material factor" defence relating to the terms on which Mr Mell was employed from October 1996 to March 2000. It will be a matter for the tribunal to determine how best to proceed with any further outstanding issues on the equal value claims, in conjunction with the rehearing relating to Mr Mell or otherwise.