MS J SHEPHERD & OTHERS v NORTH YORKSHIRE COUNTY COUNCIL [2005] UKEAT 0526_05_2112

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0526_05_2112

Case No Appeal No. UKEAT/0526/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS J SHEPHERD & OTHERSAPPELLANT

NORTH YORKSHIRE COUNTY COUNCILRESPONDENT

Before

His Honour Judge Richardson

Date 21 December 2005

[1]APPEARANCES For the Appellant MR P ENGELMAN (Of Counsel) Instructed by: Messrs Stefan Cross Solicitors St Mary's Business Centre Oystershell Lane Newcastle-Upon-Tyne NE4 5QS For the Respondent MR J BOWERS QC Instructed by: North Yorkshire County Council Legal Services County Hall Northallerton North Yorkshire DL7 8AD SUMMARY The Claimants' claim that the Respondent aided, abetted, counselled and procured trade unions to commit breaches of section 12 of the Sex Discrimination Act 1975 is unsustainable, both in the form originally pleaded and in the proposed re-formulation put before the Appeal Tribunal. Accordingly, albeit for reasons different to those of the Tribunal, the appeal is dismissed. HIS HONOUR JUDGE RICHARDSON This is an appeal against part of a judgment of the Employment Tribunal dated 21 July 2005 following a pre-hearing review for which the Tribunal sat by Chairman alone (Mr Sneath) in Leeds. By his judgment the Chairman struck out paragraphs 6-9 of the Combined Amended Particulars of Claim ("CAPOC") in the proceedings before him. Against that judgment the Claimants appeal.

[2]The essential point in the appeal may be defined as follows. The Claimants wish to allege that the North Yorkshire County Council ("The Council") has knowingly aided, or otherwise aided abetted counselled or procured, certain Trade Unions to discriminate against their members contrary to section 12 of the Sex Discrimination Act 1975. Does that allegation, either as originally formulated by the Claimants' solicitor or as re formulated by their counsel for the purpose of the appeal, have reasonable prospect of success? The Background

[3]These proceedings are brought by approximately forty Claimants employed by the Council. The largest groups of claimants are cleaners and kitchen assistants. The Claimants' cases have been combined and are presently set out in CAPOC.

[4]The principal claims are claims under the Equal Pay Act 1970. It is said on the Claimants' behalf that their posts have been rated as equivalent to those of male comparators under job evaluation studies. It is further said that their posts are of equal value to those of male comparators. This appeal is not directly concerned with those principal claims. They will be heard in due course by the Tribunal. I am told that the hearing is in the course of preparation, and that disclosure runs to more than 20 volumes of documents.

[5]By paragraphs 6-9 of CAPOC the Claimants also sought to make claims of sex discrimination against the Council. Such claims, if successful, might entitle the Claimants to compensation for injury to feelings or other non-pecuniary loss. Those claims were struck out by the Tribunal. For the most part they have already been rejected by Elias J at a Preliminary Hearing of this appeal. The arguments were similar to those rejected in Council of the City of Newcastle-Upon-Tyne v Allen

[2005] IRLR 504

. But paragraph 9 of CAPOC was held over to a full hearing of the appeal.

[6]In order to understand the appeal it is necessary to summarise briefly the collective bargaining arrangements operated by the Council.

[7]The Claimants were at all material times Trade Union members. Collective bargaining arrangement in respect of their pay and conditions were set out in a document generally known as "The Single Status Agreement" or "the Green Book", the full title of which is "The National Joint Council for Local Government Services National Agreement on Pay and Conditions of Service".

[8]The nature of collective bargaining arrangements under the Green Book is well known. There is a National Joint Council representing local authorities and their employees, through recognised trade unions. There is a system of "single table" bargaining at national, provincial and local level. There is an employer's side and a union side. On the union side the TGWU, GMB and Unison are involved. The Green Book contains key national provisions which are for application by all local authorities to all employees covered by the National Joint Council. It also contains other provisions which may be modified by local negotiation, together with advice on good practice.

[9]The Green Book has set out, ever since its first modern edition in 1997, provisions supportive of equal opportunities in employment.

(b) , provides:

"The National Joint Council's guiding principles are to support and encourage … (b) equal opportunities in employment; equality as a core principle which underpins the service delivery and employment relations; and both the removal of all discrimination and promotion of positive action."

Moreover paragraph 2.5.1, which is a key national provision provides:

"The pay and grading of jobs must be fair and non-discriminatory, complying with equal pay legislation and associated Codes of Practice."

[10]It is the Claimant's case that, contrary to the provisions of the Green Book, their pay and grading do not comply with equal pay legislation. They say that, notwithstanding the passage of time since 1997, the Council has not implemented equal pay legislation and collective bargaining pursuant to the Green Book has perpetuated existing discriminatory pay and conditions. This is the starting point in the Claimant's case for the allegations with which I have to deal.

[11]Paragraph 9 of CAPOC reads as follows:

"The applicants believe that the discussions with the unions will show a knowledge of the discriminatory practices and an agreement, or implicit understanding, not to change the current arrangements until forced to do so thus ensuring that the status quo continued for as long as possible to the benefit of the men and the detriment of the women and men in predominantly female jobs and that this was indirect discrimination between those employees on manual (white book) terms and conditions where the male jobs would be downgraded and female jobs upgraded and aiding and abetting the failure of the unions to represent their female members in breach of section 12 of he 1975 Act."

[12]Two points deserve emphasis. Firstly, this pleading is an allegation. Whether what is alleged is true is very much in dispute, but the truth of the allegations must be assumed for the purposes of this appeal. Secondly, although the allegations include assertions that the trade unions have been guilty of unlawful sex discrimination, no claim has been brought against the unions. They are not parties to these proceedings. Mr Engelman, who appears for the Claimants, suggested that claims might shortly be brought against the unions. Given the lapse of time since these proceedings commenced, Mr Bowers who appears for the Council was understandably sceptical as to whether this would occur. The Tribunal's Reasons

[13]Paragraph 9 was only one of several allegations with which the Tribunal had to deal. The Chairman said:

"… although at first blush it seems that the Claimants might have a sustainable claim in respect of aiding and abetting a breach by the Unions of Section 12 of the SDA because Section 8 does not appear to control Section 12, I have decided that that claim also has no reasonable prospect of success. For, if the Claimants are right, the conspiracy complained of sought to produce a void agreement. The remedy in that regard is limited to a declaration and the consequence of avoiding the agreement is that the Claimants are left with the benefit of the equality clause under the 1970 Act and their right to equal pay without more."

The Appeal

[14]At the Preliminary Hearing of this appeal Elias J delivered a judgment rejecting most of the grounds of appeal. However, he regarded the allegation of aiding and abetting a breach of Section 12 as potentially stronger. He doubted whether it should be struck out at a preliminary stage, and he therefore gave directions for a full hearing of the appeal.

[15]In the course of his judgment, of which I have been given a note, Elias J criticised the generality of the pleading. He said that the claim needed to identify in what way the union failed to represent its members and to what extent the employers aided and abetted them. He said that if there were said to be specific situations that could in principal involve a breach of section 12 the Claimants would have to give much fuller particulars. But he thought that in principle an allegation of breach of section 12 could stand on its own, and would not be ruled out by anything in Council of City of Newcastle v Allan or by section 77 of the 1975 Act.

[16]Since the Preliminary Hearing there have been two developments.

[17]Firstly, the Council has put in its answer. It seeks to support the judgment of the Tribunal on the additional ground that the Claimants' allegation that the Council aided and abetted the unions is too incoherent and insufficiently particularised to amount to a claim which has a reasonable prospect of success.

[18]Secondly, very shortly before the hearing of the appeal, Mr Engelman drafted proposed further amendment to CAPOC, which substituted for paragraph 9 the following:

"9. The Claimants will contend that the Trades Unions representing the Claimants, namely UNISON and/or GMB and/or TGWU discriminated against them by either deliberately omitting to afford them access to the benefit of proper and sufficient representation in relation to the implementation of the Single Status Agreement or by subjecting them to a detriment, namely their failure to provide proper and sufficient representation as set out immediately before, contrary to the provisions of section 12(3) (a) and/or (c) of the Sex Discrimination Act 1975. 10. Insofar as it is necessary to show a comparator, hypothetical or actual, the Claimants will rely upon the contention pleaded at paragraph 11(b) below. 11. The Claimants will further contend that the Respondents aided and abetted the Trades unions as defined above in committing the statutory tort set out at paragraph 9 above by either expressly or tacitly agreeing with the Trades Unions that the Single Status Agreement should not be implemented for as long as possible so that (a) the Respondents' would not have to increase their wage bill by payment of equal wages (b) from the Trades Unions perspective, the wage advantage enjoyed by their male members as identified in paragraphs 1-5 above should be continued. 12. The Claimants will rely in support of the plea at paragraph 10 above, upon (a) the fact of the efflux ion of time between 1997 and today during which time the Agreement has not been implemented (b) the fact that on the Respondent's case, the earliest date on which equal pay will be implemented will be March 2007 (c) the fact that on the Respondent's case, it has taken between March 2000 and January 2005 to even agree a way forward as to its implementation (d) the fact that on the Respondent's case, bonus payments were made to at least two of the Claimant's comparators until April 2000 and thereafter pay protection subsisted until March 2002."

[19]At the hearing of the appeal Mr Engelman applied to the Appeal Tribunal for leave to amend CAPOC so as to substitute his version for the existing one. Both Mr Engelman and Mr Bowers invited me to consider whether leave to amend should be granted. Both addressed me fully on the question. It would of course be open for the Appeal Tribunal, if satisfied that the Chairman erred in law, simply to set aside the Order insofar as it struck out paragraph 9, and remit all questions of amendment to the Tribunal for the Chairman to consider in accordance with this judgment. But neither counsel wished me to take this course, which might be productive of further delay and a further appeal to the Appeal Tribunal on an issue which could be decided immediately. Mr Engelman put in this caveat, that if the proposed amendment was in principle sound it would be for the Tribunal Chairman to deal with any issue of further particularity, and I ought not to decide the appeal on any question of detail as to the particulars given. I did not understand Mr Bowers to dissent from this; his attack was on the substance of the allegations.

[20]Mr Engelman's submissions may be summarised as follows. He submitted that the Chairman erred in law in the reason given for striking out paragraph 9 of CAPOC. He submitted that if the Council has knowingly aided the Trades Unions to discriminate against the Claimants in a manner which is contrary to section 12, the Claimants have a claim for compensation against the Council, and it is irrelevant that any agreement between the Council and the Trades Unions (even if their collusion amounted to an agreement) would be void. Mr Engelman submits that the Claimants have a sound case in law. He submits that common law principles of aiding and abetting apply: he has taken me to such cases as R v Baldessare [1930] 22 Cr App Rep 70 at 72-73, Wilcox v Jeffery [1951] 1 AllER 464 at 466F – 467C, and National Coal Board v Gamble

[1959] 1 QB 11

at 23-25. He submits that section 42 of the Sex Discrimination Act 1975 should be construed in accordance with the common law authorities, alternatively that if these authorities were wider than the principle of "knowing assistance" found in section 42, a Tribunal might also find liability on common law principles. He submits that, as set out in paragraph 11 of his proposed amendment, the act of aiding and abetting committed by the Council was the express or tacit agreement with the trade unions that the single status agreement should not be implemented for as long as possible. He submits that his claim, being fact sensitive, should not be struck out: See Anyanwu and Another v South Bank Student Union and Another

[2001] ICR 391

at paragraphs 24, 37.

[21]Mr Bowers submitted that the proposed amendment had no reasonable prospect of success. He made three principal submissions. Firstly, he submitted that no sufficient case of assistance, or aiding and abetting, was made out. There was no link between the act of aiding and abetting alleged on the one hand, and the provision of any benefit, facility, service or for that matter any subjection of detriment, by the union. The essential test to be satisfied was, he submitted, that of knowing assistance as discussed in Anyanwu . It was wrong to import common law principles of abetting where section 42 expressly provided for knowing assistance. Secondly, he submitted that no knowledge on the part of any Council employee (of whom there were some 3,500) was pleaded or demonstrated. By this he meant knowledge of any matter which might fall within section 12(3). Thirdly, he submitted that the whole premise of the argument was that the Green Book had to be implemented forthwith. But the provisions of the Green Book of necessity had to be implemented over a period of time, and no precise time scale was laid down within the Green Book. Sex Discrimination Act 1975

[22]The following are the principal relevant provisions of the Sex Discrimination Act 1975:

"12 Trade unions etc (1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists. (3) It is unlawful for an organisation to which this section applies, in the case of a woman who is a member of the organisation, to discriminate against her – (a) in the way it affords her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by depriving her of membership, or varying the terms on which she is a member or (c) by subjecting her to any other detriment. 42 Aiding unlawful acts (1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description. 77 Validity and revision of contracts (1) A term of a contract is void where – (a) its inclusion renders the making of the contract unlawful by virtue of this Act, or (b) it is included in furtherance of an act rendered unlawful by this Act, or (c) it provides for the doing of an act which would be rendered unlawful by this Act."

Conclusions

[23]It is convenient first to consider the reasoning of the Tribunal Chairman.

[24]The Chairman in his reasoning will have had in mind paragraphs 26 and 27 of the Decision of the Appeal Tribunal in Council of Newcastle upon Tyne v Allan . In that case the Claimants, again local authority workers, asserted that their employer had entered into an agreement about pay and conditions which was unlawful, as being contrary to section 77 of the 1975 Act. The agreement may in any event have been an unenforceable collective bargaining agreement. The Claimants also sought compensation against trade unions for aiding and abetting the making of the agreement. The Appeal Tribunal held that entering into an agreement which was itself void and unenforceable did not found a claim for compensation against the local authority: see paragraph 23. Since the only act alleged against the unions was that they aided and abetted the local authority to make that agreement, there could be no claim for compensation against them either: see paragraphs 26 and 27.

[25]The allegation in this case is different. It is not that the trade unions knowingly assisted the Council to make a discriminatory agreement. Rather it is that the trade unions unlawfully discriminated against their female members over a number of years, by failing to represent them as they would represent comparable men in order to secure their legitimate expectations under the Green Book. If that case were made out, it would sound in compensation. In principle, therefore, if the Council knowingly assisted them to do so, the Council would also be liable under section 42. Section 77 would be irrelevant. If two people or organisations agree to commit an act of unlawful discrimination, one providing aid to the other, their agreement will be void, but it cannot possibly follow that the victim of the unlawful discrimination is without remedy.

[26]I next turn to consider whether I should accept the invitation of Mr Engelman and Mr Bowers to consider the application for leave further to amend CAPOC. I am satisfied that I have power to do so. Having decided that the Tribunal Chairman erred in law, I still have to decide how to dispose of the appeal, and for that purpose I may exercise any of the powers of the Tribunal: see section 35 of the Employment Tribunals Act 1996. In this case Mr Bowers does not oppose the amendment on any discretionary ground, or on any ground relating to time or delay. He opposes the amendment on grounds of principle. If I declined to decide it and remitted it to the Tribunal, the result might well be a further appeal by the losing party to this Tribunal some months down the line after yet further expense. I am therefore satisfied that I should consider the proposed amendment.

[27]The essential question for me to decide is in my judgment whether the claim pursuant to section 12 and section 42 as now formulated has any arguable prospect of success or whether, conversely, it is bound to fail. I take this formulation from Jiad v Byford and Others

[2003] IRLR 232

at paragraph 24.

[28]I must keep firmly in mind the dictum of Lord Steyn in Anyanwu v South Bank Student Union at paragraph 24, where he referred to:

"… the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."

[29]In my judgment Part IV of the Sex Discrimination Act 1975 sets out the circumstances in which a secondary party is to be liable for an act of discrimination. Section 39 relates to instructions to discriminate. Section 40 relates to pressure to discriminate. Section 41 deals with the liability of employers and principals. Section 42 deals with the aiding of unlawful acts. It is neither necessary nor permissible either to supplant or to supplement Part IV of the 1975 Act by reference to the common law. To the extent that Mr Engelman submitted the contrary, I reject his submission.

[30]The expression "aids" is a wide and non-technical expression. In Anyanwu Lord Bingham of Cornhill said:

"The expression "aids" in Section 33(1) is a familiar word in everyday use and it bears no technical or special meaning in this context. A person aids another if he helps or assists him. He does so whether his help is substantial and productive or whether it is not, provided the help is not so insignificant as to be negligible. While any gloss on the clear statutory language is better avoided, the subsection points towards a relationship of co-operation or collaboration; it does not matter who instigates or initiates the relationship."

[31]In Anyanwu Lord Millett may have taken a somewhat narrower approach: see paragraphs 49-50 and also Hallam and Another v Cheltenham Borough Council

[2001] IRLR 312

at paragraph 18. For the purposes of this appeal I will adopt the approach of Lord Bingham.

[32]Section 42(1) requires two questions to be answered:(1) What was the act done by the other person which was unlawful?

(2) Did the act which is in question aid the other person to do that act? See Lord Hope in Anyanwu at paragraph 42, and Lord Bingham at paragraphs 16-17.

[33]In this case the answer to the first question is provided in paragraph 9 of the proposed amendment. The Claimants rely upon a deliberate omission or failure of the trade unions. The failure is said to relate to their representation of the Claimants in respect of the Single Status Agreement.

[34]The second question is addressed in paragraph 11 of the proposed amendment. The act which is said to have aided the trade unions in failing to represent the Claimants is an express or tacit agreement with the trade unions that the Single Status Agreement should not be implemented for as long as possible.

[35]It is at this point, in my judgment, that the Claimants' case breaks down.

[36]For the purpose of this appeal I must assume that the Council agreed with the unions that the Single Status Agreement should not be implemented for as long as possible. Assuming this, I still do not see how it can be said that the Council thereby aided the unions in failure to represent their members. My reasons are as follows. 37. Firstly, the alleged breach of section 12 is a failure by the unions to represent their female members properly. Merely by agreeing a particular result in collective bargaining an employer does not aid such an omission. It is one thing to take advantage of a failure, another altogether to aid it. Secondly, on the pleaded case, the union needed no aid or assistance to fail to represent its members. On the pleaded case this was the union's own perspective. Thirdly, it is important to bear in mind the collective bargaining arrangements between the parties. There was an employer's side and a union side. Each side had its own interests to protect and its own constituency to represent. The Claimants' argument in my judgment involves saying that merely because an employer and a union in collective bargaining have agreed an outcome which was detrimental to a union member, the employer thereby aided the union to fail to represent its member properly. To my mind the one does not follow from the other.

[38]I am aware that the proposed amended pleading is in very general terms. That, however, is how Mr Engelman puts his case. It is not asserted that the Council became involved in any more direct way, whether actively or by omission, in the union's relationship with or representation of its members. When Elias J (according to the note I have been given of his judgment) said that fuller particulars would be required of "specific situations" that could in principle be in breach of section 12, in my judgment he will have had in mind something more specific than is alleged in the amended pleading.

[39]I have borne carefully in mind that the margin of appreciation, within which a doubtful case may be allowed to proceed, is at its widest in discrimination claims. Making due allowance for that margin of appreciation, I still regard the proposed claim in this appeal as unsustainable. Once having reached this conclusion, I have no doubt that this aspect of the claim should remain struck out. To allow forward an unsustainable claim of this kind would complicate the proceedings and add to their cost for no good purpose.

[40]For completeness I mention two final points. Firstly, in my conclusions I have not placed any weight on the reference in section 42 to an "act" by the primary discriminator. I have assumed, without deciding, that an omission or failure may amount to an act for the purpose of section 42. The focus of the argument before me was upon the words "knowingly aids".

[41]Secondly, if I had thought that the allegations set out in the proposed amendment otherwise satisfied the requirements of section 42, I would not have struck out the claim for want of particularity about knowledge. No doubt a relatively small number of employees will have been involved on the Council's side in the direct process of collective bargaining. I would have allowed an opportunity for the Claimants to give particulars of knowledge, and I would have remitted the matter to the Chairman. It is the fundamental problem which I have identified which leads me, notwithstanding that the Tribunal Chairman's reasoning cannot be upheld, to refuse permission for any further amendment and dismiss the appeal.