MS MIRANDA JANE PALLETT v PENT VALLEY FOUNDATION SCHOOL [2004] UKEAT 0820_03_2807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0820_03_2807Case No Appeal No. UKEAT/0820/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS MIRANDA JANE PALLETTAPPELLANTPENT VALLEY FOUNDATION SCHOOLRESPONDENT
Before
MR COMMISSIONER HOWELL QCMRS A GALLICOMR D J JENKINS MBEDate 28 July 2004
[1]APPEARANCES For the Appellant MR P OLDHAM (of Counsel) For the Respondent MR D L REES (Representative) First Assist Jasmine House Kingston Street Chinnor OX39 4NL SUMMARY Equal Pay Act / Race Discrimination Appellant, an Australian woman teacher, claimed breaches of Equal Pay Act and RD in not paying her at the top of the scale for qualified teachers in this country. In fact she had not obtained the accreditation to count as a qualified teacher (and should have been on a lower scale altogether) but was by mistake given the job at one point below the top of the qualified teachers' scale as though she had. When the mistake was discovered the school continued to pay her the same salary but rejected her demands in a grievance procedure to be put (retrospectively) on to the maximum for qualified teachers for parity with a qualified British teacher doing like work who had already worked his way up to the top of the scale. Held . that the question for both equal pay and discrimination complaints was what actually caused her not to be paid any more than she was. The tribunal had rightly found there was no evidence of this being anything to do with her Australian nationality; and although their reasons on the material factor defence were not well expressed, had been right to take account of her unqualified status as this had been a material factor in the grievance proceedings: the complaint had been a continuing one so the material factors were not restricted by what the headteacher mistakenly thought at the time she initially offered A the job. MR COMMISSIONER HOWELL QC This appeal is by Ms Miranda Jane Pallett, a teacher, against the decision of the Ashford Employment Tribunal sitting on 25 May and 18 June 2003 under the chairmanship of Ms V G Wallis, to reject complaints she brought under the Race Relations Act 1976 and Equal Pay Act 1970 against the respondent, the Pent Valley Foundation School in Folkestone, Kent, for not paying her the same as one of her colleagues for the year she was employed at the school from 1 September 2001 to 31 August 2002. Those together with other complaints not the subject of this appeal were all dismissed by the tribunal in a reserved decision with extended reasons originally issued to the parties on 24 June 2003, corrected and reissued on 24 February 2004.[2]Ms Pallett, who was aged 31 when she took up her one-year teaching appointment with the respondent, possesses dual British and Australian nationality and all her qualifications and previous teaching experience had been obtained in Australia. The salary she was offered and accepted for the year was £23,358, expressly stated as being at point 8 of the "CPS" prescribed scale for teachers whose qualifications are recognised in this country. Her complaint to the tribunal was that notwithstanding her contract for point 8 the respondent did not pay her instead at point 9 on that scale, which is the maximum for a qualified teacher, either when she was initially appointed or later (and retrospectively) in response to a grievance she raised and pursued both during and after her year at the school. She claimed that not being given the maximum for a qualified teacher from the start was racial discrimination against her as an Australian, and a breach of the Equal Pay Act 1970 .[3]The comparator relied on for both complaints with which we are concerned was a Mr Alpin, an older male colleague at the school who was agreed to be engaged on like work. He was British, and his qualifications and previous experience had all been obtained here. He had already been teaching at the school for three years and by virtue of that and his previous experience had already reached the top of the pay scale for qualified teachers before Ms Pallett was appointed. The difference between his gross remuneration at point 9 and what she was paid at point 8 was a little under £1500 for the full academic year 2001-2.[4]The single question of law directed for full hearing on this appeal by the Appeal Tribunal which dealt with it at the preliminary hearing on 5 January 2004 was defined in the judgment of all three members delivered by his Honour

Judge McMullen QC on that day as follows:

"1. ... The only question we identify as reasonably arguable is: must a genuine material factor justifying a difference in pay under the Equal Pay Act, or a difference in treatment under the Race Relations Act 1976, be in the mind of the person setting the pay scale at the relevant time?"
It was expressly recorded at the conclusion of that judgment that although leave had been given at the hearing for amended grounds of appeal to be substituted, "All grounds of appeal are dismissed except that the point identified in paragraph 1 above will go to a full hearing" with the consideration of that issue limited to the two complaints based on the comparison with Mr Alpin.[5]Unfortunately when the matter came before us at the full hearing there was confusion between the parties' representatives as the Order of the EAT which had been drawn up and approved after the preliminary hearing, though it referred to the judgment given, recorded the entire appeal as set down for full hearing save in respect of two other named comparators. This caused Mr Oldham, who appeared for the appellant at the preliminary hearing as he did before us, to present more broadly based arguments on her instructions which extended to the tribunal's treatment of the factual issues in the case, in support or amplification of the main contention that its approach to both race relations and equal pay issues was misdirected and perverse. Conversely Mr Rees for the respondent had come prepared only to deal with the single issue of principle defined in the preliminary hearing judgment.[6]This lack of clarity, and the need to pause at more than one point while Mr Oldham was given supplementary oral instructions by Ms Pallett on factual and other matters, inevitably meant that the argument at the full hearing was prolonged well beyond the original estimate. In the end we resolved the difficulty, with the agreement of both parties, by directing that we would receive supplementary written submissions on the tribunal's treatment of the facts, so far as relevant to the main ground of the appeal that the decision was inconsistent and perverse because the tribunal had misidentified the reasons for the difference in pay between the appellant and Mr Alpin. Both sides later made such submissions and we have taken them into account. For his part Mr Oldham expressly confirmed on behalf of Ms Pallett (having taken instructions) that he was content for us to take her appeal as being confined to that main ground, as formulated in "Ground 1 – internal inconsistency/perversity in ET's finding of reasons for differential in pay" of his amended grounds of appeal and skeleton argument used both at the preliminary hearing and before us; supplemented by the two alleged factual discrepancies identified in "Ground 4 – failure to advert to evidence as to allocation of discretionary points" to be taken into account as additional points in support of Ground 1.[7]On that basis the real questions for us to determine are whether the tribunal's decision is shown to embody a material misdirection as to the test to be applied under either or both of the Race Relations Act 1976 and Equal Pay Act 1970 , in relation to the reasons for the appellant being paid the amount she was and no more; and further or alternatively whether the tribunal's stated findings and reasons on those issues are shown to be so inconsistent and confused as to render the decision itself perverse and defective as a matter of law.[8]For this purpose it was common ground that:(1) the only relevant comparator was Mr Alpin;(2) the race relations complaint was of direct discrimination only, under section 1(1)(a) Race Relations Act 1976 , in paying the appellant less than Mr Alpin on account of her Australian nationality; and(3) for the equal pay complaint, (a) she and he were engaged on like work, so that (b) the burden had been on the respondent to prove to the satisfaction of the tribunal on the balance of probabilities that the difference in pay between them in the year 2001-02 had been genuinely due to a material factor which was not the difference in sex: sections 1(2)(a) and (3) Equal Pay Act 1970 .[9]The basic facts relevant to these complaints, as agreed between the parties, found by the tribunal, or apparent from the undisputed documents, were as follows:(1) Ms Pallett, who possesses dual Australian and British nationality, was born on 19 July 1970, and brought up and educated in Australia. She left school at 16 and then went on to do two undergraduate degree courses at the University of Adelaide, first a B.Eng in civil engineering from February 1987 to November 1991, and then a (partly overlapping) B.MathSc in mathematics and Spanish from February 1989 to November 1993. She then did a one-year graduate Dip.Ed in mathematics and adult education at the same university from January to November 1994. The following year she spent some time working as a part-time child care worker from February to September 1995, and then obtained a (0.8) part-time job teaching mathematics and providing learning support in a private wilderness school for girls from September 1995 to December 1996. From January 1997 to August 2001 she had her first full-time job, as a mathematics teacher at a private school for boys in South Australia. She stated in her written job application to the respondent in May 2001 that she was currently being paid at step 9 of a 10-point scale.(2) On 17 May 2001 she had put up an application for employment in this country, electronically over the internet, and it was received by the respondent. The CV she submitted gave details of her qualifications and said she was a "registered mathematics teacher with six years' experience in South Australian independent schools", which was not actually true at that time; though it would have been more nearly so when she was ready to take up appointment in September 2001, counting her 16 months in the wilderness school in full as if it was full-time teaching and adding the four years and eight months she would then have completed at the boys' school. That CV also contained lines saying "Dfee No. Pending ... Experience 6 Years". It did not put forward any other employment experience as relevant beyond the six years' teaching experience she claimed.(3) On the same day (or rather, late the same evening by UK time) she was interviewed over the telephone by the headteacher of Pent Valley School, Miss Spear, to whom responsibility for teaching appointments had been delegated by the governors of the respondent, a "foundation school" having a degree of autonomy within the UK public education sector. The interview was successful and on the following day, 18 May 2001, Miss Spear wrote to her saying "Thank you for sparing the time to talk to me yesterday and for submitting your application ... I am pleased to offer you the post of Teacher of Mathematics at Pent Valley School commencing on 1 September 2001 on a one-year, fixed-term contract. Your starting salary will be at CPS point 8 (£23,358) per annum. ..." A few days later there was an exchange of more formal documents with Ms Pallett completing a written application form dated 22 May 2001 and being supplied with a formal offer signed by Miss Spear on behalf of the governors on the same date setting out the detailed terms being offered. This said again "Your salary will be paid on CPS point 8 as at 1 September 2001 ... Your starting salary will be £23,358" . There was a further paragraph saying "The offer of appointment is subject, if appropriate, to your acceptance by the Department of Education as a qualified teacher. If you are currently training, therefore, it is essential that you let the school know if you fail to gain qualified teacher status." Ms Pallett signed and returned her acceptance on this form, with a further signed acceptance of a separate statement of terms and conditions of her employment repeating the same pay details, on 29 May 2001, having in the meantime also replied by letter to Miss Spear saying she was pleased to accept her offer of employment and "I acknowledge the commencement date of 1 September 2001 and the starting salary of CPS Point 8."(4) Those were the terms on which Ms Pallett in fact took up her appointment at the school at the start of September 2001. At that time teachers' remuneration in the public sector in England was arranged on two scales, the "CPS" which was the higher (9 point) scale for those with professional qualifications recognised for this purpose by the Department for Education ("qualified teachers") and a lower (10 point) scale for those without ("unqualified teachers"). A qualified teacher on the CPS was entitled to two points for a suitable degree plus one mandatory point for each year of teaching experience recognised for this purpose under prescribed rules: that is, actual teaching experience in a UK public sector school or EU equivalent. In addition, he or she might be placed higher up the CPS scale by the award of additional discretionary points on initial appointment, for other teaching or non-teaching experience which did not qualify for automatic recognition but was nevertheless accepted in the individual case as relevant and of value to the teaching work. Once awarded, experience points, whether originally mandatory or discretionary, might not be taken away; but points for non-teaching experience would be overtaken by points for teaching experience as the latter grew to the maximum number of qualifications and experience points to which the teacher was entitled. Teachers at the top of the CPS scale with 9 points had a salary of some £24,800. Unqualified teachers were assessed and awarded points on a different basis and the maximum salary achievable with 10 points at the top of their scale was £19,698.(5) Ms Pallett's Australian qualifications were not automatically recognised by the DfEE as conferring qualified teacher status in this country, and despite her indication that something from them was "pending" she had in fact taken no steps to obtain the necessary accreditation by the time she took up her appointment with the respondent. Even if she had done so and been a qualified teacher , her teaching experience at independent schools in Australia would still not have counted as qualifying experience recognised under the rules to entitle her to any mandatory points on the CPS scale: the assessment and award of any points at all for her previous experience was on any footing a matter of discretion.(6) There is equally no doubt that in making the offer of employment at CPS point 8 in May 2001, Miss Spear was acting under the mistaken impression that Ms Pallett did already have accreditation for her Australian qualifications or would be obtaining it in time to count as a qualified teacher at the start of her appointment in this country. On that assumption she assessed her position on the scale by allowing two points for her degrees and adding six points for experience she accepted as relevant, by simply crediting in full the six years' teaching experience in Australian independent schools Ms Pallet had claimed, even though none of it qualified for credit automatically. No other employment experience had been claimed as relevant in her initial electronic details and Miss Spear did not include anything for such other experience in the offer of the position at CPS point 8. This did not change (nor is there any suggestion that Ms Pallett asked for it to change) when the written application and formal offer were exchanged on 22/29 May 2001 event though that application did include details of Ms Pallett's part-time child care work in 1995 and of what she described as part-time employment as "Sole Proprietor, Tutor" of "The Graduate Group", an enterprise she claimed to have founded in February 1987 at the age of 16, and to have continued concurrently with her various university courses and other activities until December 1996, all before her first full-time job.(7) In about February 2002, Ms Pallett gave notice to the respondent that she would be leaving to take up another appointment at the end of her contract in August. She had then taken no steps to obtain DfEE accreditation for her qualifications and although this had been raised by her new employer she still did not do so until the end of May 2002, when she asked Miss Spear to endorse her application to become a qualified teacher. By then it was too late to arrange for the necessary assessments in what was left of the academic year so Ms Pallett remained an unqualified teacher throughout her year's appointment with the respondent.(8) Also at the end of May 2002, Ms Pallett raised a formal grievance with the respondent, claiming that she should nevertheless have her salary for the entire year made up to the top of the qualified teachers' scale, CPS point 9, as there were other teachers at the school being paid that. A meeting was held between her and Miss Spear on 31 May at which Ms Pallett required an explanation of how her salary was calculated and insisted her qualifications matched the English equivalent. Miss Spear explained that although she did not have qualified teacher status she was being paid as though she did: her salary at CPS point 8 recognised 2 points for her degree and 6 years for her teaching experience in Australian schools. Miss Spear said she had not added any further points for non-teaching work experience and made clear she did not think it appropriate to do so now. She pointed out that she had not been obliged to give the full recognition she had for the teaching in private schools: she considered Ms Pallett was receiving a fair salary based on her experience and the two points for her degree.(9) Ms Pallett was still not satisfied and pursued her grievance. In a letter dated 17 July 2002 she reiterated her demand that her salary be raised to CPS point 9 backdated to 1 September 2001 "to match that of a less qualified and less experienced colleague granted points for experience outside the teaching profession" . She said her qualifications were of a high standard and now claimed her experience in managing a tuition agency from the age of 16 should have been taken into account, stating that this had involved "26 hours per week teaching mathematics to individuals and groups" . Miss Spear responded by letter dated 28 August that she had been awarded 2 points for qualifications and 6 for experience in accordance with the details provided in her application. Her contract had been honoured despite the later realisation that her teaching qualification was not recognised here; and Miss Spear added "I consider that you have been very well rewarded for your qualifications and relevant limited experience" . Ms Pallett went on with the dispute and the grievance procedure after her contract ended on 31 August, and a meeting with the Pay and Personnel Committee of the governors was held on 24 October 2002. At this meeting Ms Pallett maintained her claim for regrading to CPS point 9 for parity with two other members of staff she named, one of whom was Mr Alpin. She said of those two members that they "had come to the school with no experience whereas she had 14 years experience" . Those assertions about her colleagues were simply untrue, and that about herself could only be correct if one counted the whole of her life from the age of 17, half of it as a student.(10) On 7 November 2002 the decision of the Committee on this complaint (along with others) was communicated to Ms Pallett by letter from the chairman, as follows: "Request for Regrading to CPS.9 backdated to September 2001. After careful consideration, under English legislation the school made a discretionary award for 6 years teaching experience plus a further 2 points in recognition of qualifications. The Committee is unable to endorse your request to be regraded at CPS.9."(11) Ms Pallett did not avail herself of the final stage of the grievance process which was an appeal to a different panel of the governors. Instead she presented her originating application to the tribunal on 29 November 2002, alleging breaches of the Equal Pay Act and Race Relations Act by the respondent on 24 October 2002 in a "discriminatory allocation of discretionary payments in favour of British males" .(12) Mr Alpin who is the sole comparator for the complaints with which we are concerned, all others having been dismissed, was not appointed at the same time as Ms Pallett or on the same scale. He is British and was born on 27 March 1954. He came to schoolteaching later in life after a total of 14 years' experience of vocational training in industry, plus 2 years' service before that as a police officer which ended due to injury in a road traffic accident. His professional teaching and other qualifications are fully recognised and he was a qualified teacher at all material times. He had already been teaching at this school for three years before the start of Ms Pallett's appointment in September 2001. At the date of his appointment in 1998 he had already had two years' recognised teaching experience at other local authority or similar schools in this country. A different pay scale was in force at that time which had 17 points. Mr Alpin had been appointed at point 9 of the 17-point scale. Miss Spear was not the headteacher at that time and had no involvement with or knowledge of how those points had been allocated on his initial appointment. The respondent's form IT3 notice of appearance acknowledged that his initial 9 points would have included a discretionary allocation under the system then in force in recognition of the value of his 14 years' vocational training experience and/or his 2 years' police service, in addition to the 2 points he was entitled to for qualifications and a further 2 for the recognised teaching experience he then already had. A combination of the rules for conversion for existing teachers already in post when the 9-point CPS scale was introduced the following year, and his further recognised teaching experience from his service with the respondents for the 3 years from 1998, meant that he was already, as a qualified teacher, at the top of the 9-point scale as a matter of right before Ms Pallett was ever appointed. It is accepted that the two of them were employed on like work for the academic year 2001-2002.[10]Although the appellant, who was conducting her case in person, does not appear to have reformulated the grounds of her application in any more precise way at any point, it was accepted by the tribunal as a general complaint of continuing racial discrimination and/or breach of the Equal Pay Act 1970 throughout the period of her employment with the respondent and beyond, in not paying her at the maximum point 9 of the CPS scale for qualified teachers from the date of her original appointment, and not acceding to her demands to be regraded up to point 9 retrospectively during or after the end of her contract. We have some sympathy with the tribunal which, like the school governors, was faced with many-headed grievances from Ms Pallett; but we must observe that if there had been more insistence at the outset on separating out the grounds of complaint and the times they related to, there might have been less scope afterwards for confusion and misunderstanding about the result.[11]In our judgment the facts outlined above do not justify the complaints of direct racial discrimination or breach of the Equal Pay Act 1970 in not paying the appellant at the top of the qualified teachers' pay scale for the year 2001-2002, and they never did. For the direct racial discrimination claim it is necessary to show first that the complainant has in fact been treated less favourably than a person of another race or nationality whose circumstances are not otherwise materially different (section 3(4) Race Relations Act 1976 ), and secondly that any such detrimental treatment was on racial grounds. In our judgment the claim of racial discrimination in not paying the appellant the same as Mr Alpin ought to have been rejected at the outset because her pay could not be equated with his on a proper like-for-like comparison of their actual circumstances: he was a qualified teacher entitled to remuneration on the CPS scale and she was not. The requirement for her to show a detriment on such a comparison was therefore not met. Further and in any event, as the tribunal correctly pointed out there was no evidence to show, or from which it could properly be inferred, that the difference in their pay was on racial grounds. On the contrary the tribunal expressly found that it was not to do with her Australian nationality: her qualifications and experience in Australia would have been treated in exactly the same way if she had had only British nationality, and conversely if she had qualifications and relevant experience obtained in this country they would have been recognised in the same way whether or not she was Australian. The tribunal was entitled so to find. That must be the end of the racial discrimination complaint.[12]For the equal pay complaint the tests are different: here once Mr Alpin had been identified as a man doing like work for different pay during 2001-2002, it was for the respondent to show(a) what was the actual reason for the difference, and(b) that this was a material factor other than the difference in sex between the two of them. There is no doubt that this is a purely factual inquiry into the cause of the difference depending on the parties' intentions and perception at the material time or times. If a genuine material factor which is not the difference in sex and not inherently gender-discriminatory is established the defence is made out: it does not have to be justified as a fair reason for treating the two individuals differently. These are well established principles, of which any employment tribunal can be presumed to be aware: cf. Tyldesley v TML Plastics [1996] ICR 356 per Mummery LJ; Strathclyde Regional Council v Wallace [1998] 1 WLR 259 per Lord Browne-Wilkinson; Glasgow City Council v Marshall [2000] 1 WLR 333 per Lord Nicholls esp. 338-340.[13]In the present case the explanations and evidence put before the tribunal by the respondent established that there were in fact two cumulative reasons why it had not paid her, initially or retrospectively, the extra £1450 or so that would have put her where Mr Alpin already was at CPS point 9. In the first place the offer of employment made to and accepted by her had included full credit for the 6 years of teaching experience she initially claimed as relevant, and that was the maximum she could have got for that experience even as the qualfied teacher she was then assumed to be. Secondly, in response to her demands in the grievance proceedings after it had become clear that she was not after all a qualified teacher and was already being paid substantially more than the top of the scale for her actual status, her claim for even more on account of her solo tuition enterprise from the age of 16 was not accepted as having merit. Those were the actual reasons why the appellant was not paid for 2001-2002 at the top of the scale for qualified teachers, either initially or when she later demanded it. Those reasons self-evidently had everything to do with the assessment of points in her individual case for the education and previous experience accepted by the respondent as relevant and of value, and nothing whatever to do with her sex.[14]In our judgment therefore the tribunal was right to dismiss the race discrimination and equal pay complaints on the grounds that less favourable treatment on the ground of race had not been shown and the material factor defence for the difference in pay had been made out by the respondent. Those were the only reasonable conclusions that could have been reached on the facts and evidence summarised above, and insofar as this appeal is based on any suggestion that the decision is inherently perverse on either or both of those complaints we reject it. The answer to the question posed in paragraph 1 of the judgment on the preliminary hearing is that so far as direct racial discrimination is concerned the identification of less favourable treatment for section 3(4) of the 1976 Act requires a comparison of the actual circumstances of the complainant and the chosen comparator, while what was in the mind of the respondent may be material to whether any discrimination was on racial grounds. For the material factor defence under the Equal Pay Act 1970 what matters is what actually caused the complainant not to be paid the same as the comparator for the material period: perceptions in people's minds which in fact played a part in that causative process will thus be relevant even if mistaken. That the tribunal here reached the only result it could have done on a proper application of those tests is not in our view open to doubt.[15]Mr Oldham's main argument was that the tribunal's decision on both of these complaints had nevertheless to be set aside because of "internal inconsistency/perversity in the ET's finding of reasons for the differential in pay". He drew attention to the express finding in paragraph 25 of the statement of reasons that:
"25. There was no dispute that at the time of appointment Miss Spear mistakenly thought that the Applicant fell within the provisions relating to qualified teachers and assessed her accordingly. ... " and contrasted this with what was said in paragraphs 30 and 60 about why she was not paid the same as Mr Alpin: "30. We find that the Applicant was not placed on the top of the scale as she did not have qualifying teaching experience in accordance with the Order, and Mr Alpin did, as a qualified teacher, have that experience. ... … 60. We considered whether or not the Applicant had made out her case by comparing herself to Mr Alpin in respect of salary ... We concluded that the Respondent had made out a material factor defence pursuant to section 1(3) of the Equal Pay Act 1970. We concluded that the reason the Applicant was paid less than Mr Alpin was that the Applicant did not qualify for all the mandatory points available to a qualified teacher. Clearly, the decision to allocate points to her as a qualified teacher was mistaken, but having analysed the way in which the points were thus allocated, we were satisfied that maximum points could not be awarded as the Applicant did not qualify for the mandatory points in respect of qualifying teaching experience. Mr Alpin did so qualify. ..."
[16]While it is true that he was a qualified teacher and she was not, continues the argument, this cannot have been the reason for the pay differential given the finding in paragraph 25. Ergo , the decision is based on inconsistent findings and is perverse. That was said to be supported by further deficiencies in the "failure to advert to evidence" on the allocation of discretionary points in two respects: that given by Miss Spear on the current policy for allocating such points for non-teaching experience, which according to the amended notice of appeal meant Mr Alpin "would have received a total of eight points, and not nine"; and the evidence of the meeting of 31 May 2002 which "reveals unexplained discrimination" in that Ms Pallett "had received no points for relevant non-teaching experience" .[17]We accept Mr Oldham's submission to this extent, that the tribunal's reasons for their decision are by no means as clearly expressed as they might be; and Mr Rees for the respondent did not dispute this. At least part of the problem is in the failure already noted to separate out the complaint or complaints actually being made, and the time and factual context to which each related. There was a further failure to separate out the facts relevant to the racial discrimination and equal pay claims, for which as also noted above the material issues are different. To try and deal with the case, as Ms Pallett herself no doubt presented it, as one overall failure to pay what she demanded for no reason other than that she was an Australian woman, was a recipe for potential confusion; and some elision of thought is certainly evident in the statement of reasons as it struggles to deal with the answers to what were really several disparate questions at once, and at points appears to conflate them.[18]The question for us however is not whether individual discrepancies can be identified as one goes through the statement, or whether every single point at issue on the evidence was as fully and clearly covered as might have been ideal. Given the pressures tribunals are under and the difficult and complex nature of the cases they often have to deal with, there would be no end to the appeals that could be brought if that were the law. The much more limited nature of the jurisdiction of this Appeal Tribunal to interfere on such "perversity" grounds with the considered decision of the tribunal that actually heard and saw the evidence has been emphasised many times, but is most aptly summarised in the judgment of Mummery LJ, then sitting as the President of the Appeal Tribunal, in Stewart -v- Cleveland Guest Engineering Limited [1994] IRLR 440 , 443 at paragraph 33:
"Whenever an appeal is based on the perversity ground, this Tribunal ... should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in this face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."
[19]Judging by that well-established standard, we have not been persuaded that the essential findings of fact and conclusions of the tribunal in our case are open to attack as "perverse" in any of the respects alleged so that some misdirection or error of law must be presumed in the way they were arrived at and recorded. As we have already said we consider the decision itself was in fact the only one that could have been reached on this evidence by a tribunal properly directing itself as to the law; and that this tribunal did properly so direct itself, in the summary of the relevant provisions set out in paragraphs 47-55 of its extended reasons, was expressly acknowledged by Mr Oldham. Even if the detailed explanation in paragraph 60 following the further reference to section 1(3) is less than perfect, we see no reason to infer that the tribunal lost sight of the law in the way the result was arrived at.[20]The key material findings of fact which led to that decision are set out succinctly, and entirely accurately, in paragraphs 25-26 of the extended reasons, of which it is significant that Mr Oldham's argument focused only on the first sentence. The full text of what the tribunal there said was:
"25. There was no dispute that at the time of appointment Miss Spear mistakenly thought that the Applicant fell within the provisions relating to qualified teachers and assessed her accordingly. Once this mistake was discovered, the Applicant's salary was not changed. Consequently, [sic] during her employment with the Respondent, she was paid a salary which was in excess of the top salary for unqualified teachers. 26. It is also noteworthy that, leaving aside the fact that the Applicant was not a qualfied teacher, she would not have qualified under the provisions of the Order for any teaching experience points as a qualified teacher as her experience was not within a school maintained by a local education authority in England and Wales, in an MOD school or within the European Economic Area. The crucial point is, however, that she was not a qualified teacher within the statutory definition."
[21]In other words the tribunal are focusing not only on what happened when Ms Pallett was initially appointed, but on what happened later when the mistake was realised and the decision taken to leave her as she was: a decision taken and confirmed in the grievance process, as the respondent's IT3 and evidence showed, with full account taken of the fact that she was not a qualified teacher and did not have any qualifying teaching experience at all, on which basis the use of the upper scale and the discretionary allocation of 6 experience points already made was reconsidered and confirmed by the respondent as fair and her claim for yet more was rejected.[22]Taking account of the fact that the tribunal was having to consider a complaint that spanned not only the original salary offer made and accepted but the whole course of her employment and beyond (including in particular the respondent's refusal to accede to her demands in the grievance proceedings, which was what her IT1 actually identified by date as the matter she was complaining about), we find no difficulty or inconsistency in the tribunal's references in paragraph 26 to the "crucial point" of her not being a qualified teacher, or the finding in paragraph 30 that the reason she was not placed at the top of the scale for qualified teachers was that she did not have the qualifying teaching experience to entitle her to be put there: all of which was true, and relevant. The fact that the tribunal in paragraph 24 also referred to a piece of apparent speculation in Miss Spear's oral evidence about a hypothetical allocation of discretionary points for unqualified teachers which it is made clear was never in fact applied to her or Mr Alpin, and in paragraph 30 referred to Mr Alpin's qualified status and qualifying teaching experience without re-emphasising that he was already at the top of the 9 point CPS scale for qualified teachers as a matter of right when Ms Pallett was first engaged, does not alter those fundamental points.[23]In that context, we do not accept that there was any real inconsistency, still less perversity, in the tribunal's conclusions when they came to express them in paragraphs 59 and 60, both criticised by Mr Oldham; though perhaps those conclusions could have been more fully analysed. In dealing with the racial discrimination complaint in paragraph 59 the tribunal's initial conclusion that "there was no evidence to support the Applicant's view that she had been treated less favourably on the grounds of her nationality" was a clearly stated and correct explanation of the result; as was the express finding that her treatment would have been exactly the same if she had not been of Australian nationality. The further express finding that she had not been paid the maximum for a qualified teacher because she was an unqualified teacher and did not have the required qualifications and experience to be paid at CPS point 9 was also correct as a matter of objective fact if one looked at the overall reasons for being left at point 8 over the whole period to which her complaint related, as earlier recorded as fact in paragraph 25: it would no doubt have been better if that had been emphasised more specifically, but that is not something to invalidate the conclusion.[24]In paragraph 60 the tribunal's conclusion on the Equal Pay Act 1970 complaint is again expressed in a compressed way, but again we consider it an accurate statement of why the respondent had persuaded the tribunal that the material factor defence was established, taking account of the complaint as an overall one spanning the response to the grievance proceedings as well as the history of how the appellant's pay had been initially determined. The kernel of it is in the third and fourth sentences of paragraph 60 quoted above: she was not paid the same as Mr Alpin was already getting because she did not qualify for all [sic] of the mandatory points available to a qualified teacher that would have entitled her to be at CPS point 9; in fact whether or not a qualified teacher she did not qualify for any of them, as none of her previous teaching was qualifying experience and any allocation of experience points was necessarily discretionary. Again it would have been clearer if the tribunal had recorded the reason why Mr Alpin as a qualified teacher was already entitled to CPS point 9 as a combination of his transfer from the previous 17-point scale and the 5 years' qualifying teaching experience he had completed before Ms Pallett had done any at all, but that does not alter the fact that his right to his position at the top of the CPS scale was by that time a "given", and how he had originally been assessed was irrelevant: cf. Tyldesley , supra. Nor does it affect the validity of the conclusion that the material factor defence was made out in that Ms Pallett had not been paid at the maximum for a qualified teacher because her individually assessed qualifications and experience did not entitle her to the maximum, which was not a reason connected in any way with her sex.[25]The supplemental points taken on the evidence about discretionary points for non-teaching experience do not affect matters in our view. The evidence of Miss Spear about "policy" in relation to discretionary points was in fact recorded (superfluously, we think) by the tribunal in paragraph 24 to which we have already referred, so it is wrong to say it was not adverted to; but as it is clear from that and the next paragraph that this method of calculation was for unqualified teachers and never in fact used for either the appellant or her comparators, it cannot be relevant to the actual reasons why she or they were paid as they were. So far as the minutes of the grievance meeting of 31 May 2002 are concerned we were told by Mr Rees, who conducted the respondent's case at the tribunal, that there was no reference to them in the course of the evidence at the hearing at all. The tribunal did of course consider Miss Spear's witness statement, paragraph 22 of which refers to Ms Pallett having asked at the grievance meeting for her discretionary allocation of experience points to be increased, but confirms Miss Spear's response that the existing allocation was a fair reflection of those years of experience she considered to be of value. The tribunal expressly recorded in paragraph 24 that the six points had been allocated for experience on consideration of the initial CV, which claimed only the six years' teaching experience, and we do not accept as an error of law the failure of the statement to describe in more detail the meeting or meetings after which that allocation was left unaltered. A reading of the minutes shows what was in our view a perfectly valid exercise of discretionary judgment by the headteacher, later confirmed by the committee of governors, that Ms Pallett's non-teaching experience was not of sufficient relevance and value to justify an increase in her discretionary points: the suggestion that they "reveal unexplained discrimination" is absurd and we do not find it an error in law for the tribunal not to deal with such a point specifically, even if raised before them.[26]For those reasons, we have not been persuaded that there was any material error of law in the tribunal's decision to warrant its being set aside and we now unanimously dismiss this appeal.