MRS C PIKE v 1) SOMERSET COUNTY COUNCIL 2) SECRETARY OF STATE FOR EDUCATION & SKILLS [2008] UKEAT 0046_08_0310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0046_08_0310Case No Appeal No. UKEAT/0046/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C PIKEAPPELLANT1) SOMERSET COUNTY COUNCIL 2) SECRETARY OF STATE FOR EDUCATION & SKILLSRESPONDENTS
Before
His Honour Judge McMullenDate 3 October 2008
[1]APPEARANCES For the Appellant MR JULIAN MILFORD (of Counsel) Instructed by: NUT Solicitors Hamilton House Mabledon Place London WC1H 9BD For the Respondent MR NICHOLAS PAINES (One of Her Majesty's Counsel) and MR RAYMOND HILL (of Counsel) Instructed by: The Treasury Solicitor Employment Team) One Kemble Street London WC2B 4TS SUMMARY EQUAL PAY ACT: part time pensions The Teachers' Pension Scheme did not distinguish part-timers and full-timers, save for one rule which applied to teachers who retire and return to work. If the work was part-time it was not reckonable for pension, whereas full-time was. The agreed disadvantaged group was of part-time returners. As a matter of logic, the advantaged group, making up the rest of the pool, was full-time returners. A pool which included those under retirement age and still working did not test the discrimination alleged by the Claimant. Employment Tribunal Judgment reversed. Over 13 years, an average proportion of 42.45 per cent of the disadvantaged pool were men and an average proportion of 57.55 per cent were women, a disparity of roughly 15 per cent. The EAT, agreeing with the Employment Judge's tentative view, held the Claimant had shown disparate impact. The preliminary points were decided in the Claimant's favour 14 years after the rule applied to her. The claim was remitted for Hearing of the case and of the Respondents' defence of justification. HIS HONOUR JUDGE McMULLEN QC This case is about the selection of a pool for the comparison of advantage and disadvantage when a rule in a pension scheme is applied.[2]I will refer to the parties as follows. Mrs Pike is the Claimant in a test case involving 74 teachers like herself. Her employer is Somerset County Council, the First Respondent, and the Teachers' Pension Scheme (TPS) to which she belongs is administered on behalf of the Secretary of State for Education & Skills. The Claimant's case arises under the Equal Pay Act 1970 as against Somerset for breach of the equality clause in her contract of employment. The claim against the Secretary of State arises under the Pension Schemes Act 1993 for unequal access to rights under the Teachers' Pension Scheme. The Claimant is represented by Mr Julian Milford, who at the Employment Tribunal had the advantage of leading counsel but not here. Both Respondents are represented by Mr Nicholas Paines QC and Mr Raymond Hill of counsel. Their interests coincide.[3]The appeal arises from a judgment of Regional Employment Judge Macmillan sitting at Nottingham registered with reasons on 18 June 2007. He is the designated judge for hearing claims under the part-time workers pension litigation generally known as Preston . The scope of the litigation and the legislation were described in paragraphs 1, 13-33 of my judgment in Preston v Wolverhampton Health Care NHS Trust No. 3 [2004] ICR 993 . The Claimant was one of many female part-time employees who brought claims, in her case on 28 February 1995 under the Equal Pay Act and Article 141 of the Treaty of Rome . The case was decided at a strike-out hearing constituted in the way I described in Thacker v Secretary of State for Education & Skills No 1 [2005] All ER (B) 308 UKEAT/0039/05 30 March 2005. For the reasons I gave, this approach beginning administratively and determined judicially, is entirely appropriate for part-time workers' pension cases and no party takes any point on it. It must, however, be borne in mind that this is a strike-out and the test is whether the claim has no reasonable prospect of success. The facts[4]The Claimant was born on 1 July 1946 and was employed as a teacher by Somerset County Council at Wedmore First School, Wedmore, Somerset from 1982 until she took premature retirement in December 1993 on the grounds of ill-health. She was a member of the Teachers' Pension Scheme and received retirement benefits from it with effect from that date. On 13 January 1994 she returned to the school this time teaching part-time 15.5 hours a week for which she earned about £10,000 a year.[5]The Employment

Judge summarised the background in the following way:

"1. Unlike the other public sector pension schemes, the Teachers' Pension Scheme (at least for the period of time which is relevant for the purposes of the part-time worker pension litigation, from 8 April 1976 onwards) has never discriminated against part-time teachers except in one respect. Prior to 1 April 2000, a teacher who retired from the profession in receipt of a pension and who then returned to teaching part-time, could not rejoin the pension scheme. In contrast, a teacher who retired with a pension but who then returned to teaching full-time could rejoin the pension scheme. There is one slight qualification to the second proposition, namely that between 1 April 1997 and 1 April 2000, a retired teacher in receipt of a pension returning to the profession full-time for the first time was also prevented from rejoining the pension scheme."
The issue in the case is that while she was employed full-time prior to her retirement all her service was reckonable and counted towards her pensionable employment, when she returned to work part-time none of those years did. The Employment Judge struck out the claim at a PHR as having no reasonable prospect of success at trial. The legislation[6]The statutory approach to equal pay was summarised by Carnwath LJ in Grundy v British Airways [2008] IRLR 74 CA:
"40. The second question is a little more difficult. As Sedley LJ has explained, its statutory derivation is not straightforward. Section 1(3) of the 1970 Act provides a defence where the employer proves that the variation is due to a material factor which is "not the difference of sex"
. Those words, it has been held, have to be read so as to give effect to the principle of equal pay under article 141 of the EC Treaty. That in turn leads to Article 2(2) of the Burden of Proof Directive 97/80/EC, under which (subject to justification):
"… indirect discrimination shall exist where an apparently neutral... practice disadvantages a substantially higher proportion of members of one sex…"
The words "substantially" and "considerably" appear to be used without distinction in the European and domestic cases. Whether the test is satisfied is a question of fact for the Employment Tribunal."[7]Judge Macmillan summarised the legislative background to part-timers' claims in terms which are entirely correct as the parties accept and is as follows. "20. The question of disparate impact arises in this way. Section 1 of the Equal Pay Act provides:- "(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. (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 –(a) Where the woman is employed on like work with a man in the same employment – (i) if (apart from the equality clause) any terms 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 (ii) if (apart fro the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man include din the contract under which he is employed, the woman's contract shall be treated as including such a term." Section 1(2)(b)includes similar provisions in respect of work which is rated as equivalent (which has no application here) and sub paragraph (c) where work is of equal value. 21. Subsection (3) provides:- "(3) An equality clause falling within subsection (2)(a), (b) or (c) above 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 – (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(b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference."[8]The precise legislative background for teachers is summarised by

the Judge in this way:

"4. The Regulations governing the entitlement of teachers to membership of the Teachers' Pension Scheme and to payment of retirement benefits, are the Teachers' Superannuation, latterly Pension, Regulations of varying dates. Those which are material for our purposes are the Teachers' Superannuation (Consolidation) Regulations 1988 (Sl 1988/1652); the Teachers' Superannuation (Amendment) Regulations 1997 (Sl 1997/312), which introduced the short-lived exclusion of new full-time post retirement returnees; the Teachers' Pension Regulations 1997 (Sl 1997/3001), which consolidated the amendment into new Regulations; and finally the Teachers' Pension (Amendment) Regulations 2000 (Sl 2000/655), which removed the disqualification of both part-time and new full-time post retirement returnees from membership of the Scheme. 5. Part B of the Regulations in each case defines pensionable employment which, for the purposes of part-time employment is to be found in reg. B2. Regulation B2(2)(b) of the 1988 Regulations which has the effect of excluding from the scheme post-retirement returnees who return to teaching part-time only, provides that:- "(2) A person is not in pensionable employment by virtue of paragraph (1) while –… (b) he is entitled to be paid a teacher's pension."
There is no corresponding provision in reg. B1 which applies to full-time employment."[9]I will describe a person in the Claimant's position who is a member of the TPS, retires, is entitled to receive a pension and returns to work, as a returner. The issue is described by the Judge as follows: 22. The material factor relied on by the Respondents in this case is reg. B2(2)(b) of the 1988 Regulations and its successors. The claimants of course contend that the provision is indirectly discriminatory against women and is therefore not open to the Respondents as a defence under s.1(3) unless it can be objectively justified. The concept of indirect discrimination originates in the law of sex discrimination rather than equal pay but it can be engrafted onto it with little difficulty. To amount to indirect discrimination there must be a requirement, condition, provision, criterion or practice (the language of the statutory provisions has changed from time to time but it is common ground that the substantive issues which that language addresses have not) which is ostensibly applied equally between men and women but 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. That is the meaning of disproportionate impact and its existence or otherwise is demonstrated by an examination of the pool which is appropriate to the circumstances of the case."[10]As the Judge noted from his long experience of the part-time worker pension cases, what is unusual about the TPS is that there is no distinction between part-time and full-time workers except for the rule about returners. From 13 January 1994, therefore, the Claimant was not entitled to count her time as reckonable service for pension purposes; returners working full-time could, with the exception of those who returned between 1997 and 2000 when their service was discounted in the same way as part-timers'.[11]The Judge recognised that the first task was to identify the requirement said to be offensive. It is not disputed that it is the provision cited above in the Pension Regulations. The second task was to identify the pool for comparison. He accepted the Respondents' submission that "the correct pool is the whole of the membership of the profession to which the Pension Scheme, of which the offending requirement or provision is merely one of a number of rules, applies." He rejected the Claimant's contention that the pool consisted of returners, both full-time and part-time. Discussion and conclusions[12]Despite the different descriptions of the pool in a number of places in the judgment, I am assured by both counsel that the pool decided on by the Judge was those who are members of the TPS . Yet (in paragraph 12) it is described as "all teachers because all teachers are eligible to join the pension scheme and are therefore potentially affected by the rule, which is a rule of the scheme as a whole"; and "the whole of the membership of the profession to which the pension scheme … applies" (paragraph 17); "the requirement or condition … applies to all teachers, albeit in the case of pre-retirement teachers only contingently" (paragraph 18); and "the requirement … is applied to all members of the teaching profession. The correct rule, therefore, must be the entirety of teachers embracing those who can comply with it and those who cannot" (paragraph 19). The difference might have been important, for as the Judge acknowledges some teachers do not retire, some leave before retirement and some leave without joining the scheme at all. I am assured that the figures produced to the Judge were of those who are members of the TPS only, and do not reflect the number of teachers in the profession. Although the Judge's language is imprecise, I am assured that the only group considered eligible for the pool in this case are those who are members of the TPS.[13]The Judge correctly acknowledged that those who are members of the TPS are all "affected" by the part-time rule. I prefer to say that all teachers were affected by the rule which is applied only to returners. This is because the rule as the Judge put it "contingently" affects those well below retirement age. A recent graduate joining the TPS will know that at some stage the rule might apply to her and inform decisions she may make about retirement.[14]It is also necessary to discount another potential pool which is all those members of the TPS who have retired. They become eligible to receive a pension if they, like the Claimant here, retire on the grounds of ill-health prematurely, or reach the age of 60, or reach the age of 50 and are retired in the interests of the efficiency of the employer, a kind of redundancy. I think a logical case can be made for this pool since it consists of people who quietly are put off part-time working by the rule and never seek to challenge it. The rule applies to them once they retire. But this pool was expressly not advanced by either party, despite my suggestion. A second less precise pool might include TPS active members in advance of retirement who make their pension planning dependent upon whether they wish to work full-time or part-time. So I will exclude both these potential pools.[15]I do not consider that the refinement of the condition applied in this case is of great assistance, whether casting it in negative or positive terms. Throughout his submissions, Mr Paines told me he was going to submit of any given proposition that "you could equally well say that". It is possible to say that in the TPS there are two categories of person, those who work part-time and full-time. As in any pension scheme there are those still working who are the active members, those who left before retirement age who are the deferred pensioners, and those drawing the pension who are the pensioners. But the particular rule in this case requires the injection of a condition: if you want your service to be pensionable after retirement you must work full-time. Since those working pre-retirement are not distinguished as to whether they work part-time or full-time, there is no advantaged and disadvantaged group who can make a pool for comparison. For those who choose to retire and not come back to work, the rule is irrelevant (at least in this case where that pool is disavowed). No party seeks to advance a pool of those people who might be affected by the rule in making their pre-retirement decisions. So in reality there is a fundamental distinction between those working post-retirement in that part-timers are disadvantaged. True it is, as Mr Paines argues, that a person who works full-time, retires and then returns full-time will continue to accrue pensionable service. But once she does return she falls into a different group that is returners whose ability to accrue pension depends on them maintaining full-time work, for if she decides to go part-time she will lose that benefit. As a matter of first impression, this is a case about part-timers and the application of a rule which disadvantages part-timers when they seek to return to work. With respect to the Judge, I do not see the logic in bringing into the pool teachers who are in the TPS who have not retired. He uses the language of philosophy to describe as absurd the inclusion in the pool of those to whom the rule does not apply. I agree with that proposition, but not the application of it. The question is whether that view accords with the authorities.[16]That was the argument advanced by the Claimant. However, it is surprising to me that leading counsel then instructed for the Claimant presenting this argument in June 2007 did not cite to him Secretary of State for Trade & Industry v Rutherford No. 2 [2006] ICR 785 decided by the House of Lords in May 2006. Instead, all parties seemed content for the Employment Judge to consider the judgment of the Court of Appeal in that case: [2004] IRLR 892 . The Employment Judge cited extensively from the judgment of Mummery LJ with whom Scott Baker and Potter LJJ agreed. I, too, relied on that judgment when I decided Grundy v British Airways but the Court of Appeal in Grundy [2008] IRLR 74 said this per Carnwath LJ at paragraph 42:
"42. The EAT found an error of law. They thought that the tribunal had been wrong to have "reversed the focus… from the advantaged to the disadvantaged group" (para 59). That approach was entirely understandable in the light of the then most recent guidance from the Court of Appeal in Rutherford (No. 2) . The EAT had earlier quoted the judgment of Mummery LJ in that case, where he had said: "
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." (para 25) He had commented on the risk of "seriously misleading results" which might be caused by concentration on the disadvantaged group, taking the hypothetical example 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." (para 28) 43. Since the House of Lords judgments in Rutherford (No. 2) it is clear at least that the guidance of the Court of Appeal can no longer be taken as authoritative on this point."
[17]It is clear that since Rutherford No. 2 was decided in the House of Lords it would wrong for me in Grundy and thus for the Employment Judge in our case to rely on the guidance advanced by Mummery LJ: we are all wrong. I have every sympathy with the Judge whose attention was not drawn to the speeches in Rutherford No. 2 , nor to the definitive headnote in the ICR (below), and of course he had not seen put explicitly, as Carnwath LJ did in Grundy , that it was wrong to rely on the Court of Appeal in Rutherford No. 2 .[18]What then did the House of Lords determine in Rutherford No. 2 ? Two divisions of the Court of Appeal found the approach to this case difficult: Grundy (above) and Mummery LJ giving the judgment of the court for himself, Lady Justice Smith and Maurice Kay LJ in British Medical Association v Chaudhary [2007] IRLR 800 . Both divisions agreed that the precise holding of the House of Lords was to be found in the headnote produced by M Gardner, barrister, the Law Reporter for the Council of Law Reporting ( BMA paragraph 193; Grundy paragraph 23). This is the headnote:
"The applicants were male employees dismissed by their respective employers when they were over 65. On their claims for compensation for unfair dismissal and redundancy pay, to which, the employers being insolvent, the Secretary of State was respondent, the employment tribunal disapplied sections 109(1)(b) and 156(1)(b) of the Employment Rights Act 1996 in so far as they precluded claims by employees aged over 65 on the ground that the upper age limit provisions had a disparate impact on men that could not be objectively justified and were, accordingly, contrary to the principle of equality of pay between the sexes in article 141 EC. The Employment Appeal Tribunal allowed an appeal by the Secretary of State, holding that, in considering disparate impact, the employment tribunal had selected the wrong pool and should have taken the entire workforce to which the age limit provisions applied, and that on consideration of that pool those provisions did not have a disparate impact on men. The Court of Appeal dismissed appeals by the applicants. On appeal by the applicants— Held , dismissing the appeals (per Lord Scott of Foscote, Lord Rodgers of Earlsferry and Baroness Hale of Richmond) that article 141 EC sought to ensure that men and women in the same position in the workforce, doing equal work, received equal pay, and the appropriate group for comparison, in relation to the statutory provisions denying the right to compensation for unfair dismissal and redundancy pay to those over 65, comprised all those still in the workforce at age 65; that, as those provisions applied to the same proportion of women in that group as men, there was no indirect sex discrimination; (per Lord Walker of Gestinthorpe) that the pool for purposes of comparison comprised all those employed persons on whom rights were conferred by the 1996 Act, and making a comparison between the proportions of mean and women …"
[19]Baroness Hale said"73. But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. The twists and turns of the domestic case law on indirect discrimination show that this is no easy matter. But some points stand out. First, the concept is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something. The disparate impact complained of is that they cannot have what they want because of the rule or requirement, whereas others can.74. What is the comparative advantage and disadvantage in this case? It cannot simply be being under or over the age of 65. That in itself is neither an advantage nor a disadvantage, until it is linked to what the people concerned want to have or not to have. If one wants to have a pension, then reaching pensionable age is an advantage. If one wants to go on working beyond pensionable age, then reaching that age may be a disadvantage.75. The advantage or disadvantage in question here is going on working over the age of 65 while still enjoying the protection from unfair dismissal and redundancy that younger employees enjoy. As Mr Allen QC for the appellants pointed out, that protection has an impact, not only when employment comes to an end, but also upon whether or not it is brought to an end, and if so, how.76. If that is so, it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65. And the rule has no disproportionate effect upon any particular group within that group. It applies to the same proportion of women in that group as it applies to men. There is no comparison group who wants this particular benefit and can more easily obtain it. … 82. The common feature is that all these people are in the pool who want the benefit - or not to suffer the disadvantage - and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question. If it were, one might well wish to ask whether the fact that they were not interested was itself the product of direct or indirect discrimination in the past."[20]The point about Baroness Hale's groups is that she cut out those who are "uninterested" in the benefit. Those over 65 and in the workforce i.e. actually working are those who seek the benefit of employment protection. But that benefit is denied equally to men and women and so there is no disparate impact. One hundred per cent of men and of women seek the benefit, and are denied it. Applying that to our case, the workforce is returners. It is assumed that one hundred per cent of the returners wish their service to be pensionable but that benefit is denied to part-timers. Those who are in the TPS but have not retired are uninterested in the post-retirement rules. So on Baroness Hale's analysis, the total of people viz the pool, consists of returners; the disadvantaged group within the pool is part-timers and the advantaged group is full-timers. The best language to express this is that of Sedley LJ in Grundy :
"27. In Rutherford the pool was held to be the entire national over-65 workforce. No universal principle of law dictated this. It was the pool which made most sense - indeed the only pool which made sense at all - in the light of the issue being canvassed. The consequence was that the claims had to fail, since everyone in the pool regardless of gender was shut out by the material condition. Such a pool will frequently be available, and with the same consequence; but no principle of law compels tribunals of fact to select it. Indeed, if there were such a principle, it is hard to see how indirect discrimination claims could ever succeed. The correct principle, in my judgment, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none. One need go no further than the detailed examination of the statistical issues in the speech of Lord Walker in Rutherford (No2) to see why. … 31. Rutherford (No 2) seems to me to be a striking illustration of Lord Nicholls' proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of "looking at" a smaller pool for some unspecified purpose short of determining the case."
[21]In order to test the Claimant's case of discrimination it is necessary in my view to choose a pool where the disadvantage could be illustrated and that did not occur if poured into the pool were all those under retirement age and working, whether full-time or part-time. To describe them as an advantaged group, for the purposes of juxtaposition against the disadvantaged group of part-time returners, is an abuse of the language. These people had no advantage out of the post-retirement rule favouring full-timers; it simply did not apply to them. They could only distort the view of the pool.[22]A similar approach was taken to the selection of the pool in Chaudhary . This was a claim that members of a registered trade union who claimed race discrimination were discriminated against on the ground of race. Mummery LJ, for the court, held this:
"201. Applying a similar interpretation to the comparable provisions on race discrimination in the 1976 Act, the position in this case is that the appropriate pool comprised all BMA members who want the advice and support of the BMA for race discrimination claims against the specific regulatory medical bodies. No member of that pool could comply with the condition or requirement imposed by the BMA. It follows that there was no comparative disadvantage or advantage for any racial group and no indirect race discrimination against members of the racial group to which Mr Chaudhary belonged. 202. Mr Hendy submitted that the pool was all the members of the BMA. This was the approach of Lord Walker and Lord Nicholls in Rutherford in taking a pool of all those employed in the workforce. Mr Hendy argued that this was the correct pool, as all the members of the BMA may from time to time want the support and advice of the BMA in proceedings. This does not, however, conform to the reasoning of the majority that the pool should be defined by reference to the nature of the rule, condition or requirement in issue. The wider pool brings into the exercise of comparison people who have no interest in the particular advantage or actually want the particular benefit in question. In Rutherford the pool identified by the majority was those still in employment at 65. The fact that there were more men than women in that pool did not mean that there was indirect discrimination against men. There was no disparate impact on men, as all members of that pool (men and women) at age 65 were excluded from the benefit or advantage of protection from unfair dismissal and of redundancy pay."
[23]Sedley LJ in Grundy considers that the selection of a pool is determined by logic having considered the facts. Mr Paines QC accepts that the choice of a pool gives rise to a question of mixed law and fact and thus is susceptible to appeal. Sedley LJ considers that the application of logic can lead to different outcomes so that two pools can be logically correct for the purpose of testing the comparison, yet lead to results in favour of and against the Claimant. Yet it is the Claimant who has to put forward the pool for comparison and she is entitled to have that claim adjudicated. If she proves on the balance of probability that that pool is logically correct the fact that another analysis equally logical shows that she is not correct should not defeat her claim.[24]Since the question on appeal is one of law arising out of the application of logic, I am a little uneasy about admitting of two different answers. For the purposes of this appeal it seems to me the only logical pool is as I have described it: returners. It follows that I do not accept as logical the pool expressed by the Respondents as covering all those in the TPS. All those in the TPS are, as I have said, affected by every rule of the scheme but only returners have the offending rule applied to them. Disparate impact[25]The Employment Judge struck out the claim on the basis of the pool and that in that pool the Claimant had not shown statistics revealing disparate adverse impact of the rule on women. He did decide that the statistics were reliable. This is not appealed. He gave a view, which he confirmed subsequently as being tentative not formal, that on the Claimant's pool she showed disparate impact. Since I have upheld that pool, it is open to me to decide the second legal issue, or to remit it. The Claimant says that the material is sufficient. The Respondents contend this was a strike-out and the next step should be remission, without saying whether it should be to the judge to continue the PHR or to a hearing of the issue. The difference is important. If this case were simply a strike-out it goes to a three person Employment Tribunal in 2009, 16 years after the rule was applied to the Claimant and 14 years after her claim, admitted now for adjudication. At that hearing the Respondents will still be heard on their s1(3) defence of justification, maintained in their Answer at the EAT.[26]This is a case, as the judge held without dissent for there was no live evidence, in which the statistics were likely to be all important. The figures and the arithmetic are not challenged. Indeed the Respondents submit no argument written or oral on this point. It might be more expeditious for me to look at them and form a view. The sole issue in the PHR was whether the Claimant had no reasonable prospect of defeating the Respondents' defence. She gets over the first hurdle by my finding in her favour. Neither side seeks to say that the finding on this issue needs to go any further.[27]On the second, disparate impact, the tentative finding of the judge is that the Respondents have failed to strike out the Claimant's case. I take this tentative finding further for I agree with the Claimant that the purpose of the hearing was to determine whether the Claimant had an arguable case on pool and disparate impact. Succeeding on the first, the judge held that it was necessary for the Claimant to establish disparate impact on the balance of probabilities not simply an arguable case, which would be conclusively determined at a later date. This is what all parties understood at the time to be the subject-matter of the PHR. See paragraph 3 of the Judgment. So disparate impact, determined on the balance of probability on written evidence and by statistics, was an issue for the PHR and not for trial. Thus the remaining issue at the PHR is now for me to determine in accordance with the overriding objective, recognising the 14 year delay, the yet inchoate attack of the Respondents on justification, the utility of the PHR regime set up for part-timers' cases (see Thacker ) and the need for finality. I have decided to determine this without remission.[28]It was not immediately clear to me whether the correct law to be applied to the offending rule ("PCP") is that in force up to 12 October 2001, between 12 October 2001 and 30 September 2005 or from 1 October 2005, reflecting legislative changes. The essence of the three tests is a non-trivial disadvantage to women but there may be different approaches to it according to the relevant date of application. I have had no submissions from the Respondents so I accept the Claimant's. In my opinion the current test for indirect sex discrimination (from 1 October 2005) is whether the Respondent applied to the Claimant a PCP which would "put women at a particular disadvantage when compared with men". Between 12 October 2001 and 30 September 2005, the test was phrased in terms of whether the PCP constituted a detriment to a "considerably higher proportion of women than men". Prior to 12 October 2001 (the Claimant brought her claim in 1994) the test was phrased in terms of whether a requirement or condition was applied which was such that the proportion of women who could comply with it was "considerably smaller" than the proportion of men who could comply. All three tests in essence require a disadvantage to women which is more than trivial or insignificant.[29]As to the meaning of "considerably smaller" in the pre-2001 legislation, the House of Lords in Secretary of State for Employment ex parte Seymour-Smith No.2 [2000] IRLR 263 made clear that "considerable" meant "not inconsiderable" or "not insignificant". Hence, if a rule adversely affects a not insignificantly higher proportion of women than men, that rule has a disparate, and indirectly discriminatory, effect. That same case also established (applying Secretary of State for Employment ex parte Seymour-Smith [1999] IRLR 253 ECJ) that when the statistics showing a difference between men and women are consistent over a number of years, a lesser degree of disparate impact will suffice to establish indirect sex discrimination.[30]Applying the above principles, I conclude that on these facts the Claimant establishes disparate impact on the basis of her chosen pool. The statistics here are derived from the tables supplied on behalf of the Respondents. The tables concern statistically significant numbers of teachers, and show a constant picture over a number of years. They demonstrate that(a) the numbers of male and female returners were very similar over the years 1987 – 2000; but(b) consistently more female than male returners were in non-pensionable employment over the same period. Over those 13 years, an average proportion of 42.45 per cent of the disadvantaged pool were men and an average proportion of 57.55 per cent were women, a disparity of roughly 15 per cent. Moreover, a comparison of the proportion of advantaged men to the proportion of advantaged women over those 13 years shows that 38.8 per cent more men than women were advantaged. These figures show disparate adverse impact which is statistically and legally significant. The Employment Judge focused on what the Claimant had proved to the civil standard, rather than what was arguable to defeat a strike out application. I find she proved both, turning the judge's tentative view (tentative because he accepted the larger pool and did not need to decide this issue) into a finding.[31]The appeal is allowed. The case is remitted to Judge Macmillan to give directions for the expedited Hearing of the Claimant's case with the Respondents' defence of justification, as to which the Respondents must serve witness evidence within 14 days and the Claimant respond within 14 days thereafter. Permission to appeal is refused [reasons given to parties].

Cited in 1 later judgment