(1) BRITISH AIRWAYS PLC v MRS V GRUNDY [2005] UKEAT 0676_04_1908

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0676_04_1908Case No Appeal No. UKEAT/0676/04/RN, UKEAT/0827/04/RN & UKEAT/0829/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) BRITISH AIRWAYS PLCAPPELLANTMRS V GRUNDYRESPONDENT(2) BRITISH AIRWAYS PLCAPPELLANTMRS J BARBER & OTHERSRESPONDENT(3) MS SUSAN HILTON & MS CHRISTINE HARGREAVESAPPELLANTBRITISH AIRWAYS PLCRESPONDENT
Before
His Honour Judge McMullenDate 19 August 2005
[1]SUMMARY Appeals by Claimants and Respondent against different Employment Tribunal judgments variously upholding claimants' claims of discrimination arising out of the lack of access to the Respondent's seniority scheme. BA's appeals against the finding of disparate impact were allowed, since the Employment Tribunal focused on the disadvantaged group, contrary to Harvest Town Circle v Rutherford No 2 [2005] ICR 119 CA. The claims were properly made and dismissed under the Equal Pay Act and the Employment Tribunal should not have considered the Sex Discrimination Act. The claims were out of time. The defence of justification was correctly rejected by both tribunals: Hardys & Hansons Plc v Lax [2005] EWCA 46 applied. HIS HONOUR JUDGE MCMULLEN QC These cases raise difficult questions relating to the assessment of disparate impact for the purposes of indirect discrimination, the correct approach to time limits in claims relating to equal pay and sex discrimination; and the correct approach to applications to amend claims.[2]The judgment represents the views of all three members. It was delayed to allow for further submissions on Hardys & Hansons Plc v Lax [2005] EWCA 46 given after our oral hearing. Where common issues are involved, we will refer to the parties as the Claimants and to BA as the Respondent. We use the phrase "a claim under the Equal Pay Act" to include a claim based on unequal pay and also relating to unequal access to pensions under the relevant amendments to that Act. Introduction[3]These appeals arise from two Employment Tribunals. In the Grundy case, the Respondent appeals against a Reserved Decision of an Employment Tribunal sitting at Watford, Chairman, Mr V J Adamson over four days including a day in chambers, registered with extended reasons on 14 June 2004. The parties were represented by junior counsel. The tribunal found in favour of Ms Grundy. Subject to appeal, terms have been reached to implement the tribunal's finding.[4]In the Barber case, the Respondent appeals against findings in favour of 11 Claimants; and two Claimants appeal against findings dismissing their claims. The hearing was over a number of days at London (Central), Chairman: Miss A M Lewzey, registered as a Reserved Decision with extended reasons on 15 September 2004. The parties were there represented by different junior counsel. The proceedings were by way of four test cases representing different circumstances which covered all of the, now 13, Claimants. A remedy hearing was fixed but has been vacated.[5]On appeal, all junior counsel are now led by, respectively, Mr Christopher Jeans QC for the Respondent, Ms Jane McNeill QC for Ms Grundy and Mr Adrian Lynch QC for the Barber group.[6]Initial case management directions were given which were hotly resisted by the parties who objected to these appeals being heard together. So, directions were given for the cases to be heard by the same Appeal Tribunal constitution on successive days. This was because there is substantial cross-over on certain of the issues between the cases. There has been continuity of representation throughout. We hope that those parts of our Judgment which apply to only specific Claimants will be sufficiently identified, otherwise the principles apply across all cases. Strictly, the Grundy case is not joined to the Barber case. There are many issues raised by these proceedings and the parties have asked us to give a judgment on each, partly because an issue in all the proceedings is the correct approach to the treatment of disparate impact for the purposes of indirect discrimination and that is an issue which is to be heard by the House of Lords in Harvest Town Circle v Rutherford No 2 [2005] ICR 119 CA for which permission has been granted. Outline of the facts[7]British Airways Plc is an airline which regards itself as the national flag carrier. It is heavily dependent for the provision of its services on a substantial group of its employees who are known as cabin crew. By 2002, there were roughly 13,000 of them. They provide invaluable services in an employment context which has become more difficult following the terrorist events of 11 September 2001. All of the Barber group began working as cabin crew in the 1960s and 1970s and have children. Ms Grundy began in 1987 and later had a child. There are three grades: cabin crew, purser, cain services director. This workforce is predominantly female.[8]Before 1994, there was no provision for staff to work other than as full time employees. Then, part time working was offered so that cabin crew could work either 33%, 50%, or 75% of full time work and there were also job share arrangements. Nevertheless, prior to this change, the Respondent had a need for cabin crew to work on a less regimented basis to suit the needs of its business. At the same time, a number of the cabin crew for reasons which included in particular their own childcare arrangements, sought a more flexible life style. Two schemes were introduced, in succession. They were both introduced by way of a collective agreement. Collective bargaining for cabin crew is carried on between the Respondent and one, then subsequently two independent trade unions.[9]On 16 November 1978 an agreement was reached to introduce a new scheme called the Peak Workload Cabin Crew Agreement (PWCC). This came into operation in 1979 enabling a form of part time work to be undertaken but requiring full time cabin crew to resign their employment in order to take up PWCC contracts. Continuity of service was broken and seniority was lost. The scheme was discontinued in 1983 and all of the Claimants in the Barber group, who had joined the Respondent prior to 1979, had taken up PWCC contracts, then came back to work as permanent full time cabin crew (CC).[10]On 1 May 1985, a new agreement was reached called the Burford Bridge Agreement. This established a yet different form of part time working known as Support Cabin Crew (SCC). Ms Grundy started work for the Respondent on a temporary contract in 1987 and then took up an SCC contract. She went on maternity leave and returned as full time CC. In July 1993, she reverted to SCC. The SCC scheme was wound up in December 2002 and on 1 January 2003, she began as CC on a 75% part time contract.[11]Mention has been made of seniority. This is an important feature of working in the civil aviation industry. Seniority means continuous service as a full time or part time CC. Seniority invokes an annual pay increment for a maximum of 10 years. 14 years' seniority entitles a CC member to become a purser and there are other benefits associated with rostering which are dependent on the level of seniority of the relevant CC. The years spent by the Barber group, some working for the Respondent, in some cases not working at all, and in other cases, working for other employers, did not count for seniority. The gap also broke the continuity of employment so that the years prior to 1979 were not added to the subsequent years which began in 1983/84.[12]Ms Grundy was eligible for annual increments and when she became part time CC in 2003, she was put on an incremental scale equivalent to having worked five years whereas if, as the Tribunal found, her employment dated from 1992, she would have 10 years' continuity and seniority and would therefore be on a par with her named comparator, Mr Wynne. He, too, was a part time CC but had never been on a SCC contract. He was doing like work and yet their respective rates of pay were £13,589.25 and £17,499.75 in Mr Wynne's favour in 2003.[13]Grievances were filed by a number of PWCC but their appeals were all dismissed in internal proceedings on 23 December 1985. The issue, if it did not die, went to sleep until 1994 when, for the purposes of the test cases under appeal, all of the Barber group contended that they had been discriminated against in relation to admission to pension schemes by virtue of their being part time workers during the PWCC years. They thus joined in what became known as the Preston litigation: Preston & Others v Wolverhampton NHS Trust and Others No. 1 [1998] ICR 227 HL and No 3 [2004] IRLR 96 EAT (Judge McMullen QC). The exceptions were two late comers, Ms Hargreaves and Ms Hilton who presented claims in 2001. Amongst the original group, the test case of Ms Langton (illustrating possibly Ms Wirths and Ms Morgan) squarely took the point that she "also lost seniority". These apparently subtle distinctions will become relevant.[14]On 10 December 1996, following a further collective agreement, the Barber group was informed that permanent service prior to the PWCC period would be recognised and added on to employment after the PWCC period for the purposes of seniority, but there was no change in the treatment of the PWCC period itself. In other words, none of the lost years counted and so the decision made in 1978 by collective agreement has remained unchanged to date.[15]The Tribunal found that the PWCC scheme "was to provide a pool of part time staff to work at peak periods on short term contracts". Features of the facts found in respect of the four test cases were that each Claimant was engaged full time by the Respondent, had a period of maternity leave, resigned her position, took up work on the PWCC scheme and joined the permanent work force again when the scheme was wound up. During the operation of PWCC, it is right to regard each Claimant as working part time, and having breaks in continuity of employment.[16]The finding in the Barber case, and we have no reason to think it is not applicable in the Grundy case, was that:
"A more flexible alternative to PWCC was also introduced in 1985, which was the Support Cabin Crew (SCC). SCC was designed to cover the peaks in British Airways' business and avoid incurring excess staff costs during quiet times"
. Summary of the issues and our conclusions[17]In different ways, each of the cases represents a claim that the operation of, respectively, SCC and PWCC, caused indirect discrimination against women. The Tribunals upheld Ms Grundy's claim and most of the Barber claims. Each Tribunal rejected the Respondent's contention that if there were discrimination, it was justified.[18]The issues in the Grundy case are:(1) Whether the operation of the pay scales impacted disproportionately against women. The Tribunal found that it did. We disagree.(2) Whether the difference in pay between Ms Grundy and her named comparator was justified (there was no claim for loss of seniority in her case).[19]The issues in the Barber cases are:-(1) Whether permission should have been granted to Ms Clayton and others to amend their Originating Applications in order to raise a claim in relation to seniority. The Employment Tribunal allowed the claims to be made. We would disagree.(2) Whether on a proper analysis the claims were properly under the Equal Pay Act 1970 (EqPA). The Tribunal held that they were, but failed. We agree. The Employment Tribunal did not decide whether they were presented out of time. In our view, it should have so concluded.(3) In the alternative, if the claims were presented in time, whether the Tribunal was correct to dismiss them on the merits. We agree it was.(4) Since the claims were EqPA claims and were either presented out of time nor dismissed on the merits, whether the Tribunal should have gone on to consider them as claims made under the Sex Discrimination Act 1975 (SDA). We hold it was wrong to do so.(5) Whether the claims under the SDA were presented out of time. We would hold they were and should have been dismissed by the Tribunal.(6) Whether the Tribunal was correct in dismissing the SDA claims in the Hargreaves appeals on the basis that they were presented out of time. We would hold it was right to do so.(7) If the Tribunal was wrong to conclude that the SDA claims in the Hargreaves appeals were presented out of time, and right to hold that the other claims were in time, whether they should all have been dismissed on the merits in any event. We would hold the Employment Tribunal erred in its approach to disparate impact, and so the claims would fail.(8) Whether the Tribunal rightly rejected BA's defence of justification. We would have upheld the Tribunal's judgment on this. The legislation[20]The right to equal pay under the EqPA comes by way of an equality clause which means as follows where the work is "like work" as in our cases: "1. Requirement of equal treatment for men and women in same employment 1(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. 1(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the "woman's contract"), and has the effect that -- 1(2)(a) where the woman is employed on like work with a man in the same employment -- 1(2)(a)(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and 1(2)(a)(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term;[21]A claim may be presented to an Employment Tribunal at any time up to six months after the "qualifying date". Amendments to this provision – Section 2(4) – expand the cases in which claims may be brought to include a case where there is a "stable employment relationship" (Section 2ZA). This is defined as follows: "2ZA. "Qualifying date" under section 2(4) 2ZA(1) This section applies for the purpose of determining the qualifying date, in relation to proceedings in respect of a woman's employment, for the purposes of section 2(4) above. 2ZA(2) In this section – … "stable employment case" means a case where the proceedings relate to a period during which a stable employment relationship subsists between the woman and the employer, notwithstanding that the period includes any time after the ending of a contract of employment when no further contract of employment is in force; "standard case" means a case which is not -(a) a stable employment case,(b) a concealment case,(c) a disability case, or(d) both a concealment and a disability case. 2ZA(3) In a standard case, the qualifying date is the date falling six months after the last day on which the woman was employed in the employment. 2ZA(4) In a case which is a stable employment case (but not also a concealment or a disability case or both), the qualifying date is the date falling six months after the day on which the stable employment relationship ended.[22]In most cases ("a standard case") the deadline is six months after the employment ended, but in a stable employment relationship case, it is six months after that relationship ends. Where a succession of short term contracts is superseded by a permanent contract, the deadline is six months after the last short term contract: (see Preston No 3 above) paragraph 112-118.[23]A defence is provided by Section 1(3): "1(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor - 1(3)(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and 1(3)(b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference".[24]Sex discrimination is made unlawful by the Sex Discrimination Act 1975 Section 1(1) 1.- (1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-….. (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man but- (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it.[25]A different formula now contained in Section 1(2) was introduced on 12 October 2001 and applies in the Grundy case. The relevant provision of the Sex Discrimination Act is Section 1(2)(b). "1 (2) … (b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but~(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, and(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and(iii) which is to her detriment".[26]That was the section actually applied in the Grundy case and in the Barber cases. It is common ground that it was an error of law for the Barber tribunal to apply that provision rather than its original formulation in SDA Section 1(1)(b) (above). Ms Ivimy, appearing for the Claimants in the Barber case, had correctly, in her written submissions, cited the provision, yet the Tribunal repeatedly uses the language of the later provision. It is common ground that the substance of the law did not change between the two versions. But, on behalf of the Respondent, it is contended that in the Barber case, had the Tribunal used the language of the correct provision, it would not have been seduced into an error in defining disparate impact.[27]Disparate impact is not a statutory phrase but has been adopted throughout these proceedings to mean the effect of the application of, on the one hand, a requirement or condition and, on the other, a provision, criterion or practice, on the relevant group populated by women. It is a useful short-hand term but recourse must always be had to the statute. Another expression used in this case, and derived from the authorities, is "the disadvantaged group" or "the qualifying group" as distinct from the "advantaged group" or "the non-qualifiers", the latter being those complaining of the existence of a discriminatory measure.[28]The particular forms of discrimination are provided by SDA Section 6(2):
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her- (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment. …… 6) Subsection (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment."
[29]The relationship between the two statutes is regulated by Section 8 of the later Act which provides as follows: "8.-(1) …(2) Section 1(1) of the Equal Pay Act 1970 … does not apply in determining for the purposes of section 6(1) of this Act the terms on which employment is offered. (5) An act does not contravene section 6(2) if- (a) it contravenes a term modified or included by virtue of an equality clause, or (b) it would contravene such a term but for the fact that the equality clause is prevented from operating by section 1(3) of the Equal Pay Act 1970.[30]Unlike the Equal Pay Act , where there is no discretion, the time limits provided for in the SDA are as follow: "76 .- (1) an employment tribunal shall not consider a complaint … unless it is presented to the tribunal before the end of:- (a) the period of three months beginning when the act complained of was done … (5) A … tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (6) For the purposes of this section- (a) where the inclusion of any term in a contract renders the making of the contract an unlawful act that act shall be treated as extending throughout the duration of the contract, and (b) any act extending over a period shall be treated as done at the end of that period, and (c) a deliberate omission shall be treated as done when the person in question decided upon it, and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done".[31]Mr Jeans pointed out that the Respondent's terms relating to full time continuous employment mirrored those which were in place by statute during the 1970s and 1980s. Although the requirement to work more than 16 (or 8) hours was repealed as being indirectly discriminatory against women, continuity of employment is still a relevant condition in what is now Part XIV of the Employment Rights Act 1996 . "211. - (1) An employee's period of continuous employment for the purposes of any provision of this Act- (a) (subject to subsections (2) and (3)) begins with the day on which the employee starts work, and (b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision." The legal principles[32]The Grundy and Barber cases travel along the same runway before they take off for different destinations. It would be convenient to deal with the common issues of(1) the relationship between the Equal Pay Act and the Sex Discrimination Act ,(2) disparate impact and(3) justification. We will then go on to deal with discrete issues applying in the particular cases. (1) The relationship between the two Acts[33]The relationship between the two statutes has been authoritatively determined by the EAT Phillips P and members in Peake v Automotive Products Limited [1977] ICR 480, establishing that the rights under the two statutes "are mutually exclusive" (484) and their interlocking nature was described as follows: "The effect of sections 6 and 8 of the Sex Discrimination Act 1975 may be summarised sufficiently accurately for present purposes as follows, in so far as they distinguish between complaints to be made under the Equal Pay Act 1970 and complaints to be made under the Sex Discrimination Act 1975: "(a) If the less favourable treatment relates to the payment of money which is regulated by a contract of employment, only the Equal Pay Act can apply. (b) If the employee is treated less favourably than an employee of the other sex who is doing the same or broadly similar work, or whose work has been given an equal value under job evaluation, and the less favourable treatment relates to some matter which is regulated by the contract of employment of either of them, only the Equal Pay Act can apply. (c) If the less favourable treatment relates to a matter which is not included in a contract (either expressly or by virtue of the Equal Pay Act), only the Sex Discrimination Act can apply. (d) If the less favourable treatment relates to a matter (other than the payment of money) in a contract, and the comparison is with workers who are not doing the same or broadly similar work, or work which has been given an equal value under job evaluation, only the Sex Discrimination Act can apply.(e) If the complaint relates to a matter (other than the payment of money) which is regulated by an employee's contract of employment, but is based on an allegation that an employee of the other sex would be treated more favourably in similar circumstances (i.e. it does not relate to the actual treatment of an existing employee of the other sex), only the Sex Discrimination Act can apply." (See: paragraph 3.18 of the Home Office publication: A Guide to the Sex Discrimination Act 1975). Accordingly, the industrial tribunal should first have considered whether Mr. Peake had a valid claim under the Equal Pay Act 1970, and F it is necessary for us to do so. If the less favourable treatment of which he complained related only to the payment of money he could have no claim under the Sex Discrimination Act 1975. A system of equal pay was in operation, and the men and women worked the same normal hours. But it is still possible to look at the matter either way, and one could say that the women were being paid the same for less work: five minutes a day, or two and a half days a year.[34]This approach was adopted by the Court of Appeal in Shields v E Coomes Holdings Limited [1978] ICR 1159. Lord Denning MR indicated in graphic terms (at 1168F) that the approach to the statutes involves taking pieces of a jigsaw from boxes marked respectively " Equal Pay Act " and " Sex Discrimination Act " in order to complete a picture which was painted by the makers of the Acts and which is in the form of the above citation coming, as it does, from the Home Office's Guide. It follows from this analysis that there is no overlap. The rights flowing from the European concepts of the principle of equal pay and the principle of equal treatment are found as separate pieces in one or the other statute.[35]This approach was expressly adopted by Lord Browne-Wilkinson in Strathclyde Regional Council v Wallace [1988] ICR 205 at 212D. "The case has established that the Equal Pay Act 1970 has to be construed so far as possible to work harmoniously with both the Sex Discrimination Act 1975 and Article 119 [now article 141 of the Treaty of Amsterdam]. All three sources of law are part of the code dealing with unlawful sex discrimination [citing Shields and other authorities]".[36]For the Barber Claimants, Mr Lynch argues the judgment in Strathclyde and the principle that the two statutes "are mutually exclusive" are correct and binding. The EAT's judgment in Peake was reversed by the Court of Appeal, that court holding that there was no discrimination, and thus no unlawful discrimination, when an employer allowed its female workers to leave five minutes earlier each day than its male workers. The case was not made as an equal pay claim in the Employment Tribunal; on analysis in the EAT, it was a sex discrimination claim; and in the Court of Appeal it was, if anything, a sex discrimination claim. The EAT held that "if that privilege was something regulated by the contract of employment" the claim would be under the Equal Pay Act .[37]Mr Lynch does, however, contend that the analysis by the EAT in Peake should be modified to indicate that a claim of indirect discrimination does not require an actual comparator doing like work, and that the sole exclusion by Section 6(6) of the SDA (see above) is in respect of benefits which consist of the payment of money and are regulated by contract. As he correctly points out, claims for breach of contract may be made under the Sex Discrimination Act . The principle of equal pay for equal work is given, by Article 141 of the consolidated Treaty of Rome, a very wide meaning to include "the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer".[38]It seems to us that the application of Article 141 in domestic law is via the Equal Pay Act in respect of the (broadly defined) issues relating to pay. In this way, the long running Preston litigation ( [2004] ICR 993 above) relating to the exclusion of part time workers from access to pension schemes invoked Article 141 because the Equal Pay Act disfranchised the Claimants and had to be disapplied. Mr Jeans for the Respondent contends that where there is a dispute as to the content of terms of a contract, proceedings must be brought under the EqPA. We do not think it makes this problem easier to solve to use Mr Jeans' technique of distinguishing between the terms of the contract and the content of the terms of the contract. A term of a contract is a complete provision which has content and substance such as to affect the rights of the contracting parties.[39]In our judgment, where a contract regulates the provision of benefits in the form of money, the EqPA is the correct approach, because of the exclusion in Section 6(6) of the SDA. That exclusion does not apply to facilities and services, whether or not they are regulated by a contract. But when Section 6 was enacted, there was also re-enactment of the EqPA which preserves Section 1(2) of the EqPA, the right to an equality clause relating to "terms (whether concerned with pay or not) of a contract". That would catch facilities and services provided by an employer (pursuant to Section 6(2) SDA) by reason of contract rather than discretion. Yet the above authorities show that there is no overlap. To use Lord Denning's imagery, the composite picture painted by the framers of the statutes and recorded in Peake (above) cannot be completed by a piece which is found in boxes marked both SDA and EqPA. There is only one piece and it comes from one or other box. (2) Disparate impact[40]Having considered the competing arguments on disparate impact, we accept the propositions advanced by Mr Jeans. This approach requires a careful analysis of the core judgments given in the litigation known as R v Secretary of State for Employment ex parte Seymour-Smith and Perez viz [1994] IRLR 848 (Divisional Court); [1995] IRLR 465 (CA); [1999] ICR 447 (ECJ); [2000] ICR 244 (HL) and the three judgments given in litigation known as Harvest Town Circle v Rutherford viz No.1 [2002] ICR 123 (EAT); (No. 2) [2005] ICR 119 (EAT and CA). With Mr Jeans' written assistance, we weave our way through those authorities as follows: Seymour-Smith in the Divisional Court: [1994] IRLR 448[41]Balcombe LJ described the logic of the argument set out in the following passage as being 'unanswerable' – 'If the question is asked whether a considerably greater proportion of women than of men cannot comply with a given requirement or condition….the results can be seriously misleading. If a hypothetical requirement is considered, which 99.5% of men can comply with but only 99% of women, it follows that the proportion of women who cannot comply with the requirement is twice as great as the proportion of men who cannot comply. The figures relevant to the present proceedings are very much less extreme; nevertheless the arguments advanced…are of the same kind and are, it is contended, similarly misleading. The logic of this argument is unanswerable'.[42]McCullough J agreed, concluding that:
'in considering whether there is a considerable disparity, the court should look both at the relative percentages of those who meet the requirements and at the relative percentages of those who do not. Of these, the more important group will be those who qualify. The following example makes the point: If 98% of men qualify and 2% do not, and if 96% of women qualify and 4% do not, it would not be right to conclude that the disparity was considerable. But if only 4% of men and 2% of women qualified the opposite conclusion might well be correct.'
Seymour-Smith in the Court of Appeal [1995] IRLR 464[43]The Court of Appeal reversed the decision of the Divisional Court on the basis that there was a substantial disparity between the numbers of men and women who could comply with the 2 year qualifying period given the persistence of that disparity and the impact that this had. However, it did not criticise the reasoning set out above. It compared the proportions from both the larger/advantaged group and smaller/disadvantaged group, see paragraphs 91-94 and 101, spending somewhat more time on the impact on the larger/advantaged group, see paragraphs 94 and 101. Seymour-Smith in the ECJ [1999] IRLR 253[44]The focus of the decision of the ECJ was firmly on the larger, advantaged group. The Court said:- "59 Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men and women in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected… 60 As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years employment required by the disputed rule…. 61 That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement…. 62 It is also for the national court to assess whether the statistics concerning the situation are valid and can be taken into account, that is to say whether they cover enough individuals whether they illustrate purely fortuitous or short term phenomena and whether, in general, they appear to be significant…. 63 In this case, it appears from the order for reference that in 1985, the year in which the requirement of two years' employment was introduced, 77.4% of men and 68.9% of women fulfilled that condition. 64 Such statistics do not, on the face of it, show that a considerably smaller percentage of women than men is able to fulfil the requirements…". Seymour-Smith in the House of Lords [2000] IRLR 263[45]Lord Slynn summarised the position of the ECJ as follows see paragraph 20:
" … the starting point is to look at the percentage of those who do qualify and to ask, do these figures cover enough individuals, are they purely fortuitous or significant or are the figures 'relevant and sufficient for the purposes of resolving the case before [the national court]'? If these figures are not sufficient or significant, it may be necessary to look elsewhere, including, as the Divisional Court accepted, the figures of those who do not qualify …"
No consideration was given to the smaller/disadvantaged group. The majority of their Lordships focused entirely upon the comparison between the larger, advantaged groups, albeit holding open the possibility that it may be appropriate to consider the disadvantaged groups in appropriate cases. The minority considered that it was not ' necessary or helpful to consider separately the figures for those who did not qualify' , [see paragraph 36]. Rutherford (No 1) in the EAT [2001] IRLR 599[46]Lindsay P referred to Seymour-Smith in the ECJ stating that paragraph 59 'shows that at this point in the judgment of the Court was looking at the respective percentages of men and women, firstly able to comply and secondly, unable to comply with the requirement in issue'. Thereafter at paragraph 18, he said as follows:- 'Where does this leave us? Again leaving aside the case where a smaller but persistent constant disparity appears, we believe the authorities are to be synthesised and may be extended as follows:(i) There will be some cases where, on the statistics, a disparate impact is so obvious that a look at numbers alone or proportions alone, whether of the advantaged (qualifiers) or disadvantaged (non-qualifiers) will suffice beyond doubt to show that members of one sex are substantially or considerably disadvantaged in comparison with those of the other.(ii) However, in less obvious cases it will be proper for an employment tribunal, as the national court of fact, to use more than one form of comparison, no one of which is necessarily regarded as on its own decisive.(iii) In such less obvious cases it will be proper for the employment tribunal to look not merely at proportions (as proportions alone can be misleading) but also at numbers, and to look at both disadvantaged and non-disadvantaged groups and even to respective proportions in the disadvantaged groups expressed as a ratio of each other.(iv) It will never be wrongful for a tribunal to look at more than one form of comparison, if only to confirm that the case remains as obvious as it first appeared. Moreover if there is any doubt as to the obviousness of the case, the tendency should always be to look at a second or further form of comparison. … (vii) The employment tribunal, in…less obvious cases, after looking in detail at such figures as should have been laid before it, just then stand back, as it were, and assimilating all figures, judge whether the apparently neutral provision, criterion or practice has a disparate impact, be it on men or women, that could fairly be described as considerable or substantial." Rutherford (No 2) in the [EAT 2003] IRLR 858[47]At the remitted hearing, an Employment Tribunal again found there to be disparate impact, on the basis of the difference between the percentages in the disadvantaged group. The Secretary of State appealed arguing that the Employment Tribunal's focus 'upon the tiny pool of those who cannot comply with the age requirement distorted the analysis by ignoring the bigger picture' [see paragraph 80]. In giving the Judgment of the EAT, Wall J reviewed the authorities in detail. Preferring the submissions on behalf of the Secretary of State, he said at paragraph 136 that:- 'We also agree with Mr Pannick that the consequences of the failure to look at the advantaged group are compounded in the instant case by the very small numbers in the disadvantaged group, and the consequentially small differentials which emerge…The wider pool (the qualifiers/advantaged group) gives a clear and unequivocal answer to the question of disparate impact, namely that there is no disparate impact. If one then looks at the disadvantaged group, the figures are very small and are in "borderline country". Thus, by comparison with the qualifiers/advantaged group, the disadvantaged group represents, in our view, an unsound basis on which to find disparate impact'. Rutherford (No 2) in the Court of Appeal [2004] IRLR 892[48]In this case, decided after the decision was given by the Employment Tribunal in our cases, Mummery LJ referred to Seymour-Smith in the ECJ and said at paragraph 25:- 'My reading of the passage cited, as applied to this case, is that, in general, the relevant statistical comparison involves(a) taking as the pool the "workforce" (ie the entire workforce) to whom the age limit is applicable, not taking just a small section of the workforce, confined to those who are adversely affected by being over 65 or within 10 years of the age of 65;(b) ascertaining the proportion of men in the workforce who are under the age of 65 and are advantaged by being able to meet the requirement, and the proportion of men who are excluded from the right and therefore disadvantaged by being unable to meet the requirement;(c) ascertaining the proportion of women in the workforce who are under the age of 65 and are therefore advantaged by being able to meet the requirement, and the proportion of women who are excluded from the right and are therefore disadvantaged by being unable to meet the requirement;(d) comparing the results for the percentage (not the numbers) of men in the workforce who are advantaged is considerably smaller than the percentage of women who are advantaged. The primary focus is on the proportions of men and women who can comply with the requirement of the disputed rule. Only if the statistical comparison establishes a considerable disparity of impact, must the court then consider whether the disparity is objectively justifiable.'[49]At paragraph 28, Mummery LJ went on to adopt the reasoning of the Divisional Court in Seymour-Smith , stating that concentration on the proportions of men and women in the workforce who are disadvantaged "can produce seriously misleading results, as in the simple cases of a requirement with which 99.5% of men can comply and 99% of women can comply. If the focus is then shifted to the proportions of men and women who cannot comply (ie 1% of women and 0.5% of men), the result would be that twice as many women as men cannot comply with the requirement. That would not be a sound or sensible basis for holding that the disputed requirement, with which the vast majority of both men and women can comply, had a disparate adverse impact on women."[50]The reference to seriously misleading results comes from the evidence given by Mr Peter Parker on behalf of the Secretary of State to the Divisional Court [1994] IRLR 448 at para 28. It was adopted throughout the Seymour-Smith and other relevant litigation and now before us. At paragraphs 31 to 35 Mummery LJ rejected a submission that the Burden of Proof Directive required the focus to be upon the disadvantaged group. Conclusion on disparate impact[51]From this analysis, in our judgment Mr Jeans rightly makes the astringent submission that the correct approach is to focus on the advantaged group and not the disadvantaged group. It is not incorrect to look at other proportions and other numbers before finally focusing on the advantaged group. The only authority relied upon by the Claimants before the Tribunals to support the proposition that the focus was to be a small disadvantaged group was the judgment of Lord Nicholls in Barry v Midland Bank Plc [1997] ICR 319. In that case the majority of the House dismissed the appeal on the ground that there was no difference in the treatment afforded to either men or women. A dissenting view was taken by Lord Nicholls at paragraph 36, albeit that he concurred in the result on the basis that the difference was justified. He accepted that, following Seymour-Smith in the ECJ, "a comparison must be made between, on the one hand, the respective proportions of men... who are not disadvantaged and, on the other hand, the like proportions regarding women in the workforce". Lord Nicholls went on to suggest (without being prescriptive) that " a better guide " would often be found " in expressing the proportions in the disadvantaged group as a ratio of each other". However, in our judgment this approach was not endorsed by the majority, it does not address the note of caution struck by the Divisional Court in Seymour-Smith and is with respect out of step with the prevailing (and subsequent) case-law and was not repeated by Lord Nicholls when giving the leading speech of the majority in Seymour -Smith . (3) Justification[52]In complaints under both the EqPA and the SDA, an employer may seek to justify unequal treatment or unequal pay. The exposition of the law on this in Barry v Midland Bank Plc [1997] ICR 319 was expressly adopted by the Tribunal in the Grundy case which also relied on Hampson v the Department of Education and Science [1989] IRLR 69. That latter case was relied on by the Tribunal in the Barber case. In Barry , Lord Nicholls said: "Objective justification I turn to the question of objective justification. In Bilka-Kaufhaus G.m.b.H v Weber von Hartz (Case 170/84) [1987] ICR 110 a department store pursued a policy of excluding part-time workers, mostly women, from an occupational pension scheme. The employer's case was that the exclusion of part-time workers was intended to discourage part-time work, since part-time workers generally refused to work in the late afternoon or on Saturday. The Court of Justice held, at p.126, para 36, it was for the national court to determine whether and to what extent the ground put forward by the employer might be regarded as an objectively justified economic ground. The court added: 'If the national court finds that the measures chosen by Bilka corresponded to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measure affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119'. More recently, in Enderby v Frenchay Health Authority (Case C-127/92) [1994] ICR 112 , 163 the Court of Justice drew attention to the need for national courts to apply the principle of proportionality when they have to apply Community law. In other words, the ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women or men as the case may be, the more cogent must be the objective justification. There seem to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon".[53]To this examination can be added that of Sedley LJ in Allonby v Accrington and Rossendale College & Others [2001] ICR 1198. "Once a finding of a condition having a disparate and adverse effect on women has been made, what was required was at the minimum a critical evaluation of whether the college's reasons demonstrated a real need to dismiss the applicant; if there was such a need a consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter."[54]Since collective bargaining is a feature of both of the Tribunal cases, it is important to see what role collective agreements may play in a defence of justification. In what is known as The Royal Copenhagen case ([1998] ICR 51) the ECJ held as follows: "The national court's fourth question, paragraph (b), asks what significance should be attached so far as concerns equal pay for men and women to the fact that the rates of pay are determined by collective bargaining or by negotiation at local level. Since article 119 of the E.E.C. Treaty is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals: see in particular Defrenne v. Sabena (Case 43/75) [1976] ICR 547 , 568, para. 39. Nonetheless, the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national court as a factor in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex".[55]After the oral hearing of our case, the Court of Appeal handed down judgment in Hardys & Hansons Plc v Lax [2005] EWCA 46. All counsel enthusiastically grasped the opportunity we gave them to make further submissions and all expressly submitted the Judgment supported their respective cases. In our view, it supports the contentions on justification advanced by the Claimants based upon Allonby . We refer in particular to the Judgment of Pill LJ at paragraphs 32-37 for the statement of principle, the approach of an appellate tribunal, and the adequacy of decision making of an Employment Tribunal."32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable ( Barry ) and I accept that the word "necessary" used in Bilka is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman , the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.34. The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions.35. The employment tribunal, at paragraph 9, referred to Allonby and stated: "It is understood that it was necessary to weigh the justification put forward by the [appellants] against its discriminatory affect. Accordingly, it proceeded to consider the matters on which the [appellants] relied in order to refuse the applicants request that the RRM job be done on a job share or part-time basis".36. I find nothing wrong with that general statement. Whether the correct test has been applied, and an analysis conducted with appropriate rigour, can in this case be considered only upon a detailed consideration of the reasoning of the employment tribunal, which I have already set out in full. In his submissions, Mr Clarke has analysed it in detail.37. The employment tribunal's analysis, Mr Langstaff submits, correctly focused on evaluating the employers' reasons for their decisions. The members gave weight to the employers' evidence where it was entitled to weight and had regard to the employers' needs. Detailed reasoning was not required; it was sufficient to indicate in broad terms what the answer was. The tribunal did not accept that the business could not be run efficiently with a job share. It was not necessary to go further and state how the job share was to be arranged. The tribunal's conclusion was plainly expressed. The TSM job could have been done by two job sharers or two part-time workers".[56]On behalf of Ms Grundy, Ms McNeill relies upon the judgments of the European Court in Schönheit v Stadt Frankfurt [2004] IRLR 984 and Kutz-Bauer v Freie und Hansestadt Hamburg to support her submission that budgetary considerations, additional burdens and collective agreements should not be the basis upon which fundamental obligations of the European Union are avoided by means of the defence of justification. We accept that submission. Ms Grundy's case Disparate impact[57]The facts in Ms Grundy's case came later than those in the Barber case but the Employment Tribunal and EAT hearings of it came first. Her claim was unequivocally based on the EqPA, for she withdrew her claim under the SDA based on the same material and it was dismissed at the hearing. It was common ground that there was a comparator, Mr Wynne, engaged on like work. Because she had not been placed as high on the incremental scale, her pay was less. This was because her time as SCC did not count to the same extent. The Tribunal looked at the numbers and proportions of female and male CC and SCC as embodied in the following finding and agreed table. 21. We had submissions put to us as to how we should do this, in particular whether we should look at the advantaged or disadvantaged group of employees, or both, and whether we should look at the whole of the cabin crew or part. The numbers of the support cabin crew, in total, declined from 1994 to 2002 but the proportions of male and female support cabin crew to male and female full and part time cabin crew throughout that period were similar. The figures regarding the composition of cabin crew and support cabin crew between 1994 and 2002 are as follows:[58]In the light of those figures, the Tribunal drew the following conclusions: "22. The policy criteria or practice contained in section 1(2)(b) Sex Discrimination Act 1976 was the fact that support cabin crew had not been entitled to increments whereas full time cabin crew were. 23. We were referred to a number of authorities, had regard to all of them in particular Harvest Town Circle v Rutherford (No.1) 2002 ICR page 123 and to the synthesis in paragraph 18 of that judgement; to the Burden of Proof Directive, and section 1 (2)(b)(i) Sex Discrimination Act 1976 we consider it relevant to look at both the advantaged (full time, part-time and job share cabin crew) and disadvantaged groups (support cabin crew) in order to establish whether there has been discrimination but our focus must be on the disadvantaged group. 24. The inability to receive an increment is a detriment as it results in the employee of more than five years standing receiving a lower rate of pay than she otherwise would. Having regard to Allonby v Accrington and Rossendale College and Others 2001 ICR 1189 we consider the pool for comparison to be all the cabin crew, whether full time, part-time, job share or support. 25. We examined the figures produced to us and the calculations:(i) We identified all those employees who, but for the ability to acquire increments would be in the same position, this is a total of all the cabin crew whatever that type. This amounts to 13,127.(ii) We divided that total into those who are advantaged and those who are disadvantaged (8,952 + 4130) i.e. 13,082 into those who cannot (42 + 3) i.e. 45. This equals 0.34%.(iii) The percentage of women in the pool who are advantaged as a percentage of the total in the pool is calculated by dividing 8,952 by 8994 and multiplying that by 100 which [produces a figure of 99.53%. In respect of men, the same calculation i.e. 4,130 + 4,133 x 1000 produces a figure of 99.93%(iv) The percentage of women who are advantaged compared to the percentage of men who are advantaged is 99.53% compared to 99.93%.(v) In proportional terms this is 0.996.1. Expressed in that manner we consider the difference in proportions to be insignificant. 26. We considered the proportion of women to men within the overall workforce of the cabin crew. In 2002 the total female cabin crew (including support cabin crew) was 8,994 and the total male cabin crew (including support cabin crew) was 4,133, a proportion of2.18:1. Women in both groups comprised a considerably larger proportion than men. In respect of the disadvantaged group, the women comprise 42 out of 13,127, the men comprise 3 out of 13,127, the proportion of women disadvantaged to the proportion of men disadvantaged amounts to 14:1. In the disadvantaged group 86.67% more women than men are disadvantaged (42 -3) + 45 = 86.67%. 27. The proportion of women in the disadvantaged group is considerably higher than the proportion in the advantaged group. In the context of the Respondent's cabin crew workforce which is comprised predominantly of women we consider that this reveals, and we find that the policy criterion or practice of not paying increments to support cabin crew was to the detriment of a considerably larger proportion of women than men".[59]Although the parties have jointly agreed a large number of corrections of a typographical nature to the judgment of the Tribunal, no agreement was reached as to paragraph 23 which we have reprinted without correction. As can be seen, the Tribunal directed itself by reference to Rutherford (No 1) and of course did not have the judgment of the Court of Appeal in Rutherford (No 2) . It is now plain from our discussion of the legal principles that it is an error of law to have reversed the focus, as here, from the advantaged group to the disadvantaged group.[60]Further, even at the time of this Employment Tribunal Decision, it was apparent that the differences in the proportions fell within, and well within, the examples indicating no disparate impact given by McCullough J in Seymour-Smith (No 1) (above) of between 98% of men and 96% of women complying, and subsequently Mummery LJ's example in Rutherford (No 2) (above) of 99.5% of men and 99% of women complying. Although it may be of assistance in certain cases to look at other relativities, the incorrect focus and the failure to recognise how minimal the difference was, constituted errors of law. It must also be remembered, as Mr Jeans repeatedly pointed out to us, that this was not a paradigm case, since the groups were all predominantly female. Although the impact of course on the individual Claimants in the disadvantaged group is serious, the infection is contained.[61]Other "reality factors" advanced by Mr Jeans seem to us to be matters for an employment jury. As was said in MOD v Armstrong [2004] IRLR 672 EAT (at paragraph 46) "The fundamental question for the tribunal is whether there is a causative link between the applicant's sex and the fact that she is paid less than the true value of her job, as reflected in the pay of her named comparator. This link may be established in a variety of different ways depending upon the facts of the case…".[62]As Ms McNeill for Ms Grundy put it, in Home Office v Bailey [2005] IRLR 369 at paragraph 21, the Court of Appeal emphasised that it is for the tribunal of fact to make the relevant assessment and there is no statutory provision prescribing how a tribunal should investigate whether a prima facie case of sex discrimination has arisen. Yet we consider that the Tribunal here made an error in its wrong focus and in its failure to recognise the infinitesimally small difference in proportions the figures yielded. This is sufficient for us to allow the appeal by BA.[63]We have been asked to substitute our view if we determine there is an error. Given that this is simply a matter of arithmetic, we are in as good a position as the Tribunal to judge the facts said to constitute disparate impact. As we have noted above, the approach to the statistics said to be "seriously misleading" came from the evidence of Mr Peter Parker who sits as a specialist member of the EAT. Since his evidence, and therefore his approach to the statistics, was accepted at all levels in the Seymour-Smith litigation and has been taken up in the Rutherford litigation, we would have no difficulty in accepting that approach of a very experienced member of this tribunal. We hold that there was no disparate impact within the meaning of the statute, substituting our own view of the statistics. Justification[64]It is strictly unnecessary for us to deal with BA's appeal against the finding against its defence of justification. We are however asked to do so, since we understand one of the issues which will be before the House of Lords when Rutherford (No 2) reaches it, is the correctness of the focus on the advantaged/disadvantaged group.[65]We will therefore give some views lest we be wrong on disparate impact. We reject the appeal for the reasons given by the Tribunal and Ms McNeill. The Tribunal set out the three bases upon which justification under Section 1(3) of the EqPA had been advanced by the Respondent. "29. The Respondent's position is that, if there was indirect discrimination which it had disputed, it was justified. The justification put forward and to which we address ourselves were threefold, namely:(i) The collective bargaining process and the incremental pay scale;(ii) The need to avoid anomalies and excess administrative burden within the pay structure;(iii) The need to encourage and reward workers to work for their length of service under a regime which required them to work when the Respondent required them to work rather than when the staff wished to work 30. The reasons for justification put forward and the evidence we heard were interrelated. The reasons put forward for justification relate to employment relations and business organisational efficiency and effectiveness. They are legitimate aims. We have considered the reasons put forward separately and cumulatively". (1) Collective agreement[66]The Tribunal recognised that "the fact that agreement was reached does not in itself provide justification for discrimination". It also held "36. …… We do not consider that the fact that the scheme was agreed by the Respondent and the trade unions or any impact on employment relations justifies the discrimination".[67]On the basis of those two citations, it is submitted by Mr Jeans that the Tribunal erred in law for it failed to consider the impact of the Royal Copenhagen case (above). As a matter of language, we hold that this cannot be correct. The Tribunal correctly directed itself in the second citation and the absence, as Mr Jeans contends, of the word "the end" in the first citation neither renders the second citation incorrect nor does it indicate any misdirection in the first. The Tribunal found, and this is not challenged, that: "36. The collective bargaining process aimed to and achieved terms of employment for support cabin crew which were less advantageous than their full time colleagues".[68]Given that the express purpose of the parties to the agreement was to achieve less favourable terms for SCC, it cannot be used as a justification. There was no justification for placing the Claimant effectively on the mid-point of the salary scale by reference to the structure of collective bargaining or in its operation. We cannot see that that amounts to an error of law – it is uniquely a matter of appreciation of the strength of the defence and was for this Employment Tribunal to decide. (2) Anomalies and administrative burdens[69]Again, the Employment Tribunal decided as a matter of fact that the administrative difficulties suggested by the Respondent against providing SCC with increments were not made out. It expressly reminded us that it was dealing with this matter as an employment jury and "that employers have to devise all sorts of mechanisms in respect of pay" It had no doubt this large organisation cope with the administrative difficulties and, we hold, correctly rejected the defence. (3) Loyalty[70]The Tribunal accepted that the Respondent would have less use for SCC than would have been the case in respect of its full- and part-time employees. But the Respondent failed to present satisfactory material upon which the Tribunal found loyalty was a justifiable ground for the disparity in increments. This ground must fail on the basis of the evidence produced.[71]It follows that if we are wrong in overturning the Employment Tribunal's judgment on disparate impact, we would nevertheless uphold its judgment in favour of the Claimant. The Barber cases[72]For a range of reasons, each compounding the last, none of the Claimants' cases survives the various appeals. Again, we have been asked to give our judgment on all the principal issues, but we comment at this stage that the utility in our so doing, building hypothesis upon hypothesis, is difficult to discern. (1) Equal pay claims[73]All of these claims were based on discrimination against part-time workers and were dependent upon the Preston (above) litigation. Most claims were lodged in December 1994, although Ms Hargreaves and Ms Hilton lodged theirs in October 2000. Ms Langton (and possibly Ms Wirths and Ms Morgan) in the first group, and Ms Hilton in the second group, mentioned seniority. The Claimants all contended that the failure by the Respondent to count the period while they were PWCC, and thus not working full-time for the Respondent, towards their pension constituted discrimination against part-time workers and was discriminatory against women.[74]Following and applying my judgment in Preston (No 3) (above) all claims based on unequal access to pensions were withdrawn, each Claimant accepting that she could not establish a stable employment relationship bolting together the periods when she undertook work for the Respondent before and during the PWCC years. Thus by 1994, each was between 9 and 10 years too late to bring a claim which, it will be recalled, must be brought within six months of the end of a stable employment relationship. The Claimants conceded in open Tribunal they were out of time (Reasons para 49). The Respondent's argument, which we deal with below, that this should also be fatal to the seniority claims, was rejected by the Tribunal. It accepted the Claimants' argument that the claim relating to loss of seniority was based on "inequality in the full-time permanent contract after the PWCC scheme came to an end" on 31 October 1983. The relevant contract sued upon was therefore held to be that of the permanent relationship which began in around 1984 and continued. A number of problems arise from this holding.[75]First, the claim based on loss of seniority "merely clarifies a claim that was already in the Originating Application…" (Reasons para 63). That is clear recognition that the claims were, and were held to be, claims in contract for breach of the equality clause during the PWCC years when the Claimants were denied access to the pension scheme and were denied seniority. In the straightforward case of Ms Langton who, in 1994, had complained of both acts of discrimination – pension and seniority - her acceptance that she was out of time for one should have applied to the other. The pension claim was not just withdrawn, but was at the hearing conceded to be out of time and dismissed.[76]In order to reach our conclusion, it is necessary to look at the contractual provisions. All of these Claimants resigned voluntarily in 1979. By 1980, individuals were being offered work on PWCC contracts. Ms Hilton's is illustrative, for hers is actually headed "Contract of Employment". There is an express reference to agreements made at the appropriate bargaining table. One of these is cited as being a "condition applicable to this employment" and includes the following words:
"C. This offer is subject to:- The loss of all previous seniority if you are a former member of our Air Cabin Crew."
[77]It follows that resignation from the permanent CC, and thus loss of seniority and continuity of employment, was a condition which had to be met prior to the offer of a PWCC contract. During the PWCC years, seniority was not obtainable as a matter of contract, and continuity of service was broken upon each contract's expiry. When the scheme was wound up in 1983 and the Claimants began working as CC in 1984, the contract then offered (again, as an illustration, Ms Hilton's) included the words "Your employment (including your initial appointment and any subsequent one) will be governed by… 7(c) the loss of all previous seniority if you are a former member of our cabin crew… 9 any rights entitlements or claims (if any) in respect of or arising out of any previous employment by British Airways as a member of Peak Workload Cabin Crew are hereby waived. 10 The terms and conditions set out in the document headed 'PWCC Categories 1 & 2: Proposed Terms and Conditions of Permanent Employment attached to the letter sent to you by British Airways and dated 25 November 1983 are incorporated into and form part of this contract".[78]It is not too simplistic to say that this document reminds the Claimant that she had already lost her seniority by resigning from the permanent CC and did not acquire any seniority during the time she was contracted under the PWCC. The reference in subparagraph 10 above to the Proposed Terms includes the following: "1. Allocation of Seniority.1.1 All PWCC accepting a permanent contract will be added to the bottom of the present BA seniority list.1.2 All category 1 and 2 crew will have their priority positions determined according to the total number of weeks worked on a temporary basis up to February 28 1984 (this being the completion date of current PWCC contracts). All category 3 and 4 PWCC will be below category 1 and 2 on the seniority list. 2. Continuous Service 2.1 For all categories date of joining for continuous service is date of commencement of permanent contract or any immediately preceding temporary contract. 3. … 4. Pensions APS rules provide that Pension membership starts on date of commencement of a permanent contract. 5. Pay 5.1 Category 1 & 2 PWCC will be assimilated on to the increment point appropriate to total continuous service prior to resignation plus accrued PWCC service".[79]Further support for this simple analysis is provided by the application to amend the Originating Applications made by solicitors instructed by the Claimants on 10 January 2001. This sought to include a claim of sex discrimination contrary to Section 1(1)(a) and/or 1(1)(b) of the SDA to the effect that "the Respondents do not include the above-mentioned period in calculating my seniority with the company". That is an express cross-reference to the periods cited by the relevant Claimants and is to the PWCC years. It will be necessary for us to return to the question of amendment.[80]By 2003, two comparators had been cited by the Claimants and accepted by the Respondent as doing like work. Each was employed, as the Claimants were, up to 1979 but they, as the Claimants put it, were not required "to relinquish their full-time employment contracts to be deployed on PWCC terms in order to work part-time following periods of maternity leave". There is express reference to their being members of the pension scheme.[81]Taking the straightforward case of Ms Langton who made a claim in 1994 which included a complaint of lack of seniority, the Tribunal correctly analysed this as a claim relying on the EqPA (Reasons para 45, 47, 49, 52, 71, 76).[82]While she was working alongside a comparator doing like work, he was a member of the pension scheme and accruing seniority and she was not. Both claims are regulated by the terms of the PWCC contract, and the comparator's contract. Pension access is regulated by the amendments to the EqPA and treated as "pay": Preston . Seniority was found to be "basically a contractual matter" by the Employment Tribunal. The Respondent kept a BA seniority list and a CC seniority list which controlled eligibility to apply for promotion, annual leave and the position in the aircraft cabin whenever each worked. It also affected annual increments. On that material, the Tribunal's finding cannot be faulted. It is amply described as "a provision which relates to terms (whether concerned with pay or not) of the contract". Under Section 1(2) of the EPA, it may also be a benefit within the meaning of Section 6(6) of the SDA. That provision is not referred to by the Tribunal when it deals with the relationship to Section 6(2) but it does refer to Sections 8(5) which is also a provision related to Section 6(2).[83]From this material, we hold the Tribunal was correct when it found that the claims made by the Claimants were under the EqPA. On analysis, it was a comparison of the contractual terms applying during the PWCC years. The PWCC contracts might have formed a stable employment relationship, but they could not survive the impact of limitation under Section 2(4) of the EqPA once the Claimants signed permanent contracts in 1983/4, following the judgment in Preston (No 3) paras 112-118 (above).[84]The Tribunal never addressed the submission expressly made by the Respondent that these claims were therefore out of time. In an ordinary case that would be an error which would need to be determined by it on remission. However, the language of these contractual arrangements makes the conclusion obvious. PWCC contracts are expressly described as temporary contracts. The evidence cited in the Originating Applications shows discontinuous periods broken by periods of unemployment or employment by other employers. Resumption of employment is on a permanent full-time basis. So, a stable employment relationship meeting the terms of Preston (No 3) cannot be established. That much was also obvious to the Claimants when they withdrew their pension cases in the light of Preston (No 3) . This ground of appeal must succeed by simple application of that judgment and the appeal must be allowed without remission.[85]In order to side-step the consequence of such a finding, as Mr Jeans put it, the Tribunal accepted the argument of the Claimants that the breach of the equality clause in relation to seniority related to a clause in the 1984 CC contracts. We do not accept the Tribunal's finding that this was the relevant contract, for as we have indicated the loss of seniority occurred in 1979 and the failure to accrue it occurred in each spell of work regulated by a PWCC contract. It can properly be said that during the PWCC years, the Claimants worked as part timers and thereby lost out on the contractual term relating to seniority. The references to seniority in the 1984 CC contract are simply a reiteration of what had happened long before. Indeed, it might have been thought to be a requirement imposed by the predecessor to the Employment Rights Act 1996 Part I to advise employees in writing of terms relating to starting date and previous service.[86]However, if we are wrong about that, the Tribunal was nevertheless correct to dismiss the claims in relation to this 1984 contract. It did so because it had no evidence relating to the comparison with the named comparators in the period after 1984 . Mr Lynch argues with some force that the Tribunal should not have rejected the evidence relating to the comparators since they were agreed between the parties. For different reasons, Mr Jeans makes the same point. They are both correct. From our previous discussion, it is plain that this case was run on the basis of what occurred in the PWCC years. Like work with named comparators was admitted and so the real issue was to be justification. But no admission was made as to any comparators in 1984 and subsequent years. In its conclusions at paragraphs 71 to 76, the Tribunal must have been considering the claim based on the 1984 CC contract, for that is the only equal pay case which it decided to hear. There are references to the Tribunal not knowing whether the comparators went on to the PWCC scheme and whether they went part-time or full-time after the PWCC scheme ended. A similar point is made in the reference to a potential comparator, Mr Grasso. The Tribunal also considered a hypothetical comparator which, on the holding of the European Court of Justice in Allonby , is an incorrect direction. A Claimant must cite an existing or former comparator of the opposite sex. So if, contrary to our holding, the Tribunal was correct to look at the 1984 CC contract, it was also correct to dismiss the claim on the merits. (2) Sex discrimination claims[87]Whether we are right or wrong in those above two conclusions, it follows from our consideration of the relationship between the EqPA and the SDA that the Tribunal should not have embarked on consideration of the claims under the SDA. Its route was as follows: "79 The Tribunal has found that the claims under the Equal Pay Act fail. Accordingly, the provisions as to seniority do not contravene the provisions of the Equal Pay Act so as to bring them within the ambit of section 8(5) of the Sex Discrimination Act 1975. The provisions of section 8(5) relate to contravention, not to the ability to bring a claim. Mr Randall has argued that, if a claim can be brought under the Equal Pay Act, it cannot be brought under the Sex Discrimination Act. The wording of section 8(5) require contravention of the Equal Pay Act which we have found not to be the case. The claim can therefore proceed as a claim of indirect sex discrimination".[88]We have been told by Ms Ivimy that no argument was put on behalf of the Barker Claimants relating to the word "contravention" and this construction is not supported. The correct construction is that if a claim is properly made under the EqPA as being within Section 1(2) or within Section 6(6) of the SDA, and it fails, life cannot be breathed into it by the SDA. The Tribunal found, and we accept (no concession having been made), that a claim was made in the alternative under the SDA and that was a perfectly proper way to proceed. Given the difficulties in the interlocking provisions, as noted for example in Shields v Coomes , above, it is understandable that claims are put in the alternative. The result sought is a finding under one or other, but not both, of the statutes. The relevant act of discrimination[89]In this part of our judgment based on the Tribunal's Reasons, the assumption is that there is an act of discrimination, there is no need for a named comparator, there is no requirement for like work or work of equal value but the relevant circumstances of men and women must be the same or not materially different in each case (SDA Section 5(3)). Although the Tribunal summarised the wrong section of the Act, it is common ground that the Tribunal correctly found as follows: "81. The parties agree that the provision, criterion or practice is that the Respondent imposed a criterion or condition to work full-time and continuously in order to maintain seniority. Accordingly, the first issue for the Tribunal is whether there was a disparate impact under section 1(2)(b)(i).[90]It has to be said that the Respondent's practice has remained constant. It was in force in the 1970s and at all relevant times. In this case, however, the Claimants refined their complaint to two applications of this practice. As to this, the Tribunal found as follows:
"58. The Tribunal took the view that the refusal by the Respondent to recognise the Applicants' service prior to the PWCC once they had taken up full-time employment again in 1984 constituted a continuing act. It was an act extending over a period and the Respondent was responsible for the ongoing situation in which the Applicants were treated less favourably by not having their seniority recognised"
. That finding is inconsistent with the finding in paragraph 101. "It is therefore the unanimous decision of the Tribunal that the claim of indirect sex discrimination succeeds. The Applicants were indirectly discriminated against by failing to maintain their pre-PWCC seniority for the entire period of their full-time employment after the PWCC scheme was 'discontinued".[91]The inconsistency is that the Tribunal has, on the one hand, determined that the discrimination ceased in 1996 when, by collective agreement, pre-PWCC seniority was recognised and bolted on to CC seniority and yet by paragraph 101, the Tribunal finds that discrimination continued throughout.[92]It then turned to the claim for loss of entitlement to accrue seniority during the PWCC years. On our examination above of the Originating Application and its comparison to the pension claim, this was the way in which the Claimants were putting their case. The Tribunal dismissed the claim of sex discrimination for failing to accrue seniority during the lost years as follows: "102. ….. In relation to this, we have no statistical information and no evidence that there was any distinction between the men or women on the PWCC period of service. Accordingly, in relation to that, no disparate impact has been demonstrated and that claim must fail. We also have no figures or statistics for temporary workers and therefore cannot use them for comparative purposes".[93]In our judgment, this cannot sensibly be described as a continuing policy but is the consequence of a one-off act. The proper approach to this distinction is set out in our judgment in Coutts & Co Plc v Cure [2005] ICR 1098 , 1108:
"28 The factual circumstances in which discrimination occurs have been illustrated in the authorities as falling into one of the following categories. (1) A one-off act of discrimination, such as a refusal to promote, which has continuing consequences for the disappointed candidate. (2) An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time. (3) A series of discriminatory acts, whether or not set against a background of a discriminatory policy. A complaint in respect of category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was "decided on"
. Time runs for a category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, e.g. in refusing promotion, from the date of that application. Time runs in a category (3) complaint where there is specific statutory provision for this, from the last in the series of acts. 29 A full exposition of these rules was given by Auld LJ, before the Court of Appeal, in Cast -v- Croydon College [1998] ICR 500 . A pregnant employee asked in March 1992 whether she could return after her maternity leave to work part-time and was refused. She made further applications and was met with further refusals in March and May 2003, on her return from maternity leave. She gave notice of resignation in June and left in July 1993. Her complaint to the Employment Tribunal in August 1993 was rejected as out of time, a decision upheld by the EAT. The Court of Appeal held that the correct approach was to regard there as being in place a continuing act, and further that there were several decisions of the relevant employer, the last being the last refusal to accept her application for part-time work in May 1993. The final conclusion in the Applicant's favour was that the Tribunal had jurisdiction, but that a complaint presented in August was only three days out of time and the Tribunal might well have exercised its discretion to hear the case out of time under section 68(5) of the Race Relations Act 1976. Auld LJ set out the propositions as follows, at pp 507-509:
'22 The authorities distinguish between a complaint of a 'one-off' discriminatory decision whether or not it has a long-term effect, which is governed by the general provision in s.76 (1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, 'an act extending over a period' for which s.76(6)(b) provides. 23 Lord Griffiths in Barclays Bank pIc v Kapur [1991] IRLR 136 HL, referred, at 138, 17, to the difference between a 'one-off' decision and 'the continuing state of affairs which is governed by s.68(7)(b ) (the equivalent in the 1976 Act of s. 76(6)(b) of the 1975 Act). In Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, a complaint of an employer's failure to regrade the complainant on a number of occasions, Mummery J, giving the judgment of the Employment Appeal Tribunal, made the same distinction: '... the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts ...in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up . The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu . It would be a matter of evidence for the tribunal as to whether such a practice. ..in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice (my emphasis). (Emphasis added) 24 As to a 'one-off discriminatory act', it is important to keep in mind that it may be an application of an established discriminatory policy or it may be inherently discriminatory regardless of any such policy. If the complaint is of a specific discriminatory act, the fact that it may have been an application of an established policy adds nothing for this purpose. The starting point is, therefore, to determine what is the specific act of which complaint is made. 25 The fact that a specific act out of time may have continuing consequences within time does not make it an act extending over a period; see Amies v Inner London Education Authority [1977] ICR 308 EAT - failure to appoint to a position; and Sougrin v Haringey Health Authority [1992] ICR 650 CA - refusal to upgrade an employee. 26 As to an act extending over a period, the authorities make clear - at least in the case of discrimination in the field of employment under s.6 of the 1975 Act and s.4 of the 1976 Act (see Brooke LJ in Rovenska v General Medical Council [1997] IRLR 367 , CA, at 370-371, in particular, paragraphs 18, 19, 27 and 31) -that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters. A moment's consideration of the concluding words of s.76(6)(b) - 'any act extending over a period shall be treated as done at the end of that period' (my emphasis) -shows that that must be so. If the 'act extending over a period' required a specific act by an employer to give it effect there would be no need or room to 'treat ...it as done at the end of the period'
. See, as examples of claimed continuing acts of discrimination, Calder v James Finlay Corporation Ltd [1989] IRLR 55 EAT -refusal of benefit of employment; and Barclays Bank v Kapur [1991] IB-LR 139- -employer's refusal to take previous pensionable employment into account in calculating pension entitlement' 30 When an act is alleged to consist of the repetition of a previous discriminatory act, special considerations apply. "Policy or no, a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to an earlier decision.' 31 In every case, the essential question is "what is the discriminatory act of which complaint is made?" (Paragraph 51). When looking at the way in which the complaint was made, tolerance must be given to the fact that Tribunals are "shop floor" Courts, whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly, a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched (paragraph 41, following Sougrin v Haringey Health Authority [1992] IRLR 416 CA at 419 paragraph 32, per Sir John Donaldson MR). 32 …… 33 In Barclays Bank Plc -v- Kapur [1991] IRLR 136 Lord Griffiths approved the judgment of the EAT in Amies (above). In Amies it was held that a complaint made in 1976 of discriminatory refusal to promote a woman in 1975, and the filling of the post by a man in 1975, before the Sex Discrimination Act 1975 took effect, was out of time. The appointment had a continuing effect but was not a continuing act. In Barclays itself, a decision made by the bank to exclude service by Asian workers abroad from qualification for pensions, made before the implementation of the Race Relations Act 1976, was not out of time, for there was a continuing act of discrimination".[94]Applying those principles to the present case, the decision to exclude part-time workers i.e. those who went on PWCC contracts, was taken in November 1978. It was applied to each Claimant as she resigned in 1979. It was further applied to each Claimant when she took each PWCC contract. When she regained permanent employment in 1984, there was a reiteration of the simple fact that she was a new starter with no seniority. In 1996, there was a further agreement providing recognition of pre-PWCC employment for seniority purposes. The Tribunal obviously regarded this as significant for it said as follows: "60. All Applicants, with the exception of Mrs Hargreaves and Mrs Hilton, presented their claims prior to 1996 and therefore are within the prescribed time limit for their claims of sex discrimination. Mrs Hilton and Mrs Hargreaves' claims are out of time by some four years".[95]There was plainly a full review and a change of heart relating to the pre-PWCC service and on one at least of the Tribunal's findings, discrimination came to an end at that stage. If that was the claim, it was plainly met by 1996 and the Tribunal ought not to have been considering it as having effect up to 2004. On the other hand, there appears to have been straightforward repetition of the Respondent's attitude to the PWCC lost years even if the relevant act of discrimination took place in 1984 when permanent contracts were entered into. The act was not to recognise PWCC service. It was, we hold, a one-off event. It was equivalent to a grading decision. As the Tribunal found, all the Claimants were treated as new starters. Thus, their positions on the BA seniority list and on the CC seniority list had already been lost. Their rate of pay was affected, as was their status, for example a person who would otherwise expect to be or shortly to be a purser was set back to zero. Plainly, that decision had continuing consequences like a single decision on promotion, re-grading, demotion, or a disciplinary action, but it was not a continuing act of discrimination. It follows that all claims under the SDA were out of time, presented as they were in 1994 and 2000.[96]If, however, we are wrong and this did constitute a continuing act, as the Tribunal found, the next question is whether the Tribunal was correct to allow most of the claims to be amended to include a claim under the SDA. The Tribunal appears to regard the relevant date as 1996, the time of reconsideration and the new collective agreement and thus it was able to find that all the claims submitted in 1994 were "within the prescribed time limit". The period within which proceedings must be brought , which is the language of the heading to Section 76 of the SDA, begins in December 1996 and ends three months later in March 1997. A claim presented in 1994 is presented before 1996. It seems to us that the intention of Parliament was to prescribe a window, beginning with the date of the act complained of and ending three months later, during which a claim must be presented. We have not heard argument on this point and need not decide it, but it does seem odd that a claim on this footing could be presented two years before the relevant act of discrimination has occurred. The 1994 claims would not be validly presented.[97]The real point about this watershed date is that the Tribunal used it in order to validate the majority of the claims (made in 1994) and to disallow Ms Hargreaves and Ms Hilton who presented theirs in 2000 i.e. four years late. It seems that here the Tribunal was operating on the assumption that a one-off act occurred in 1996 and to present a claim four years later, without explanation and seeking an extension, would not be acceptable. If this is the correct interpretation of the Tribunal's reasons, it is not necessary to consider the continuing act point in respect of the Claimants who presented their claims in 1994: they would be in time if a claim can be presented before the three-month window.[98]It is, however, necessary in respect of Ms Hargreaves and Ms Hilton. If there were a continuing act up to 2004 as the Tribunal elsewhere finds, their claims are not out of time. The real question is whether the claim should be amended to include a claim of loss of seniority under the SDA.[99]It is accepted that no error has occurred in the Tribunal's diagnosis of this as being a "new cause of action". The Tribunal considered the leading authority, Selkent Bus Company Limited v Moore [1996] IRLR 661 . It considered the balance of injustice and hardship to both sides. It considered that the Respondent "was fully able to plead to the claim". On behalf of the Respondent, Mr Jeans contends that the amendment latched onto proceedings which comprised an abandoned highly specific claim for wrongful exclusion from a pension scheme as a vehicle for a wholly new and different claim which is impermissible: Ali v Office of National Statistics [2005] IRLR 201 .[100]He is correct when he contends that the Tribunal failed to make findings as to why seniority was not raised by most of the Claimants in 1994 and amendment was sought as late as 2001. The fact that the proceedings were stayed during the course of the Preston litigation may have been relevant but it ought to have been the subject of clear finding. The fact that the Respondent was "able to plead" seems to us to be an irrelevant factor. Of course, if the amendment is allowed, the Respondent would have to state its case on it, but that is different from considering all of the factors in Selkent against the balance of justice. On any analysis, the periods are extraordinary: it is either a period which ended in 1979 or in 1984 with claims made in 1994 and amendments in 2001. Although this is a matter of discretion for the Employment Tribunal, we consider that it was wrong in principle to rely on the ability of the Respondent to plead to the case and to fail to make findings in respect of the substantial delay. Further, the Respondent was plainly in difficulty in seeking to defend this claim on the basis of events occurring so many years before the hearing.[101]The most important feature missing from all of this is an account by the Claimants as to why they did not raise seniority at an earlier date. For most of them, it was over six years after their claims were presented and for Ms Hargreaves, it was 15 months. Such an account should have been forthcoming and the failure to give one means that the Tribunal has not considered a relevant and important factor within the Selkent principles. We would set aside its judgment on this issue and in the absence of any explanation today by the Claimants, we cannot form a basis to substitute our own judgment. It was for them to provide an explanation and without one the Employment Tribunal had no jurisdiction. Disparate impact: Ms Langton and Ms Hilton[102]The sole remaining survivors at the end of this tortuous construction of a house of cards, which we have done at the invitation of the parties, are Ms Langton who claimed loss of seniority in her Originating Application in 1994 and Ms Hilton who did so in 2000. For them, the hypothetical survivors, to scale this house of cards, it is necessary for us to consider disparate impact. They all fall victim to the statistics.[103]Given the Tribunal's finding that the offensive criterion was that employees should work full time and continuously in order to maintain seniority, an examination of the PWCC group is, by definition, an examination of part-timers. Yet there is no comparative analysis of the group of persons employed by the Respondent who lost seniority by virtue of breaks in service. Two flaws occurred in the acceptance by the Tribunal of the relevant pool. The pool did not include what were described as category 3 and 4 PWCC staff, those who had joined BA from other airlines. The explanation was these had not been required to resign from BA and therefore had no seniority to lose prior to joining PWCC. But this does not explain the absence of categories 3 and 4 from an entitlement to seniority while working on PWCC contracts which, on our above analysis, was the nature of the claim put forward by the Claimants. When this case is analysed in SDA terms, the correct approach is that a requirement or condition was applied to all cabin crew that to accrue seniority, they must work full-time and have unbroken service. Concentration on category 1 and 2 PWCC staff meant that other staff were excluded. These were PWCC category 3 and 4, and other cabin crew to whom the requirement or condition was applied but who lost seniority or who did not accrue seniority, because of breaks in continuity . It is assumed for this purpose that the only form of part-time working at the time was PWCC. This, in our judgment, is a fundamental error in the selection of the pool and makes discussion of disparate impact unnecessary.[104]The Tribunal itself noted that it had insufficient evidence from the total of PWCC categories 1 to 4 and this should itself have led to a finding that the pool was incorrect when restricted to PWCC categories 1 and 2.[105]The Tribunal's approach to the statistics is recorded in the following paragraphs: "83 If the Tribunal looks at categories 1 and 2 only, the situation is that between 1979 and 1984 there were some 6,000-8,000 full-time cabin crew and some 200 on the PWCC contract of whom 30-40 were in categories 1 and 2. We therefore take the total full-time cabin crew as 7,000 and the categories 1 and 2 PWCC as 30. Of the 7,000 total, 60% were women, that is 4,200, and 40% were men, that is 2,800. Of the 30 PWCC categories 1 and 2, 28 were women and 2 were men. Therefore, taking the total of the full-time employees and the PWCC employees, there were 4,228 women and 2,802 men. 84 …. 85 Using a pool of 4,228 women and 2,802 men, the corresponding percentages in the PWCC categories 1 and 2. Of these, 28 were women and 2 were men, so the percentages were 93.3% women, 6.7% men. 86 ….. 87 Of the 28 women out of a total of 4,228 women, the percentage who could not comply with the criterion or condition to work full-time and continuously to maintain seniority were 0.66% whereas 99.34% could comply. Taking the figures for men as two men out of 2,802, the numbers of men who could not comply with the criterion or condition were 0.07% and those who could comply were 99.93%. 88 …… 89 The Tribunal has taken into account the guidance given in this case. Harvest Town is authority at paragraph 18(i) that we may look at the distinctions in the PWCC, namely that 93.3% of women could not comply while 6.7% of men could not comply. By virtue of paragraph 3 of Lindsey J's guidance, the PWCC can be taken as a sub pool. The whole pool of all full-time cabin crew is 60% women, 40% men, whereas the PWCC pool is 93% women, 7% men, and therefore there is a disparate impact in that many more women than men are affected by the provision or criterion. We note that by virtue of (iv) of Lindsey J's guidance it would be wrong for us to look at only one form of comparison. As can be seen, we have looked at all the permutations. These together show that there was a disparate impact on women in the PWCC who were deprived of their seniority by joining the PWCC. We are satisfied that, taking into account the guidance of Lindsey P, the Applicants have shown a disparate impact. 90 …. 91 On the basis of a 60%:40% split, the ratio is 1.5 women to 1 man. In the PWCC, the ratio is 28:2 (14:1). Looking at this in accordance with the guidance of Lindsey P in Harvest Town, the impact is disproportionately high for women. 92 It is therefore the unanimous decision of the Tribunal that the Applicants have demonstrated that the provision, criterion or practice that they should work full-time and continuously to maintain seniority is to the detriment of a considerably larger proportion of women than of men[106]Two things are immediately apparent from the above findings. First, taking paragraph 87, the result is that 99.34% of women and 99.93% of men could comply with the condition, making the difference between the two groups 0.49%. This difference is truly minimal and one group cannot be said in the language of Section 1 of the SDA to be "considerably" smaller or larger than the other.[107]Secondly, in paragraph 89 the Tribunal is plainly focusing on the disadvantaged group. From our analysis of the authorities on this subject, including Rutherford (No 2) in the Court of Appeal which was decided after the Tribunal decision in our case, that would be an error. The error is less obvious in this than in the Grundy case. Here the Tribunal cited the guidance given by Lindsay P in Rutherford (No 1) and noted that it would be wrong to consider any one form of comparison. Even with that correct self-direction, we however think that the Tribunal did focus on the disadvantaged group. It may have been led into error by its failure to direct itself as to the correct statutory provision. Whilst it is accepted that there is no substantial difference between the pre- and post-2001 formulations of Section 1 of the SDA, the earlier version undoubtedly trains the eye on the advantaged group i.e. those who could comply. We accept the submission of Mr Jeans that the Tribunal would not have said that the proportion of women who could comply was considerably smaller than the proportion of men when the difference was less than 0.5%.[108]As in the Grundy case, we are asked to substitute our judgment for that of the Employment Tribunal on the statistics. For the same reasons, we would do so if any case survives this far. Application of the condition[109]The conclusions by the Tribunal are in paragraphs 101-102 cited above. It is common ground that the Tribunal, by these paragraphs has, as Mr Jeans puts it, split the two-fold condition of continuous service and working full time and made a conclusion based only on the period of PWCC. In any event, the Tribunal fails to recall its previous finding that, by 1996, the pre-PWCC service had been aggregated to the post-PWCC service and thus logically, this claim should have fallen away. Again, with respect to the Tribunal, the findings in these two paragraphs are inconsistent with the claims made and its previous findings. They are also based upon evidence relevant to the PWCC years and not to statistics relating to disparate impact in the pre-PWCC and post-PWCC years. Justification[110]Our approach to the finding by the Barber tribunal that the Respondent had not justified its treatment is the same as in the Grundy case. We see no error of law. In the Barber case, the sole argument advanced relates to collective bargaining and "good industrial relations". The Tribunal said this:
"96 The Respondent has not pleaded or identified any particularised need or objective which required that part-time service should not count for the purposes of seniority. Ms Ivimy therefore submitted that their claim that any disparate impact was justified must fail."
[111]In rejecting the argument, the Tribunal considered the judgment of the Court of Appeal in Allonby [2001] ICR 1198 CA at paragraph 29. It gave cogent reasons for rejecting the argument based upon the evidence and upon its own experience. It also considered that an objective balance between the discriminatory effect of the condition and the reasonable needs of the Respondent should be made: Hampson v Department of Education & Science [1982] IRLR 418 . This is consistent with Hardys & Hansons Plc v Lax [2005] EWCA 46. We cannot see any error in its approach. If thus far all our views are wrong, the Claimants would succeed, for justification has not been proved. Conclusion[112]We would very much like to thank all of the legal teams engaged in this litigation for the careful preparation and presentation of these appeals. For all the above reasons, all the appeals by BA must be allowed and the appeals by Ms Hargreaves and Ms Hilton be dismissed. Appeal[113]For the reason given in para 6 above relating to Harvest Town , we grant Ms Grundy's application for permission to appeal.