DUMFRIES AND GALLOWAY COUNCIL v MRS E NORTH AND OTHERS [2009] UKEAT 0047_08_2404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0047_08_2404Case No Appeal No. UKEATS/0047/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
DUMFRIES AND GALLOWAY COUNCILAPPELLANTMRS E NORTH AND OTHERSRESPONDENTS
Before
Lady SmithDate 24 April 2009
[1]APPEARANCES For the Appellants MR I TRUSCOTT (One of Her Majesty's Counsel) Instructed by: Dumfries & Galloway Council Legal Services Council offices Buccleuch Street Dumfries DG1 2AD For the Respondents MR B NAPIER (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors Berkley House 285 Bath Street Glasgow G2 4HQ SUMMARY 244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, groundsmen, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as janitors, but the claimants did not seek to compare themselves with them. The issue was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2)(c) of the Equal Pay Act 1970 . The Employment Tribunal found that they were. Judgment reversed on appeal. On a proper construction of section 1(6) of the 1970 Act, the claimants and comparators were not in the same employment. It had not been established that the comparators would or could have worked, in their comparator jobs, at schools. Even if it was possible to hypothesise that they could have been so employed, it had not been established that their terms and conditions would have been broadly similar to those on which they were employed when not based at schools. THE HONOURABLE LADY SMITH INTRODUCTION This appeal raises an issue that has not yet been authoritatively determined namely; in what circumstances, if any, can a claimant in an equal pay claim show that she is in the same employment as a man employed by the same employer at a different establishment in a different job from any job carried out at the woman's establishment and under a different collective agreement?[2]The issue arose in a group of 244 equal pay claims at the instance of classroom assistants, support for learning assistants and nursery nurses employed at the respondent local authority's schools. They were employed on terms and conditions contained in a collective agreement known as the "Blue Book" (the "National Administrative, Professional, Technical and Clerical Collective Agreement"). They sought to compare themselves with male manual workers in the employment of the local authority based at depots around the local authority area and at a swimming pool. I will continue to refer to parties as claimants and respondents.[3]The male comparators were employed as road workers, groundsmen, refuse collectors, refuse drivers and leisure attendant. They were employed on terms and conditions contained in a collective agreement known as the "Green Book" (the "Scottish Council for Local Authorities' Services (Manual Workers) Scheme of Pay and Conditions of Service Collective Agreement").[4]There were male manual workers employed as janitors on Green Book terms and conditions at schools but the claimants did not seek to compare themselves with them; the janitors did not receive certain bonuses to which the claimants' chosen comparators were entitled.[5]By judgment registered on 27 May 2008, following a pre hearing review, the Employment Tribunal sitting at Glasgow, Employment

Judge Ms F Eccles, held:

"The Judgment of the Employment Tribunal is that the claimants and their comparators are in the same employment within the meaning of Section 1(6) of the Equal Pay Act 1970 (as amended)."
[6]The claimants were represented by Ms B Criddle of Counsel before the Tribunal and by Mr Napier QC before me. The respondents were represented by Ms L Marsh, Advocate, before the Tribunal and by Mr Truscott QC before me. BACKGROUND[7]The relevant facts can be summarised as follows.[8]The claimants' jobs are as noted above. They are all based at schools. The Head Teacher of each school is in charge of their day to day management and direction. It was also accepted by parties that Head Teachers have an element of discretion regarding choice of employees to work at their schools. Further, importantly, no person can be employed in schools unless checks as to their suitability are made at the enhanced level under the Disclosure Scotland procedure and nothing adverse is disclosed. Put shortly, that procedure is one under which employers can make enquiries of Disclosure Scotland, a government agency, in respect of any applicant for a post to find out(a) their criminal conviction history, and(b) any appropriate non-conviction information. It is of the highest importance that these checks reveal nothing of any concern at all in circumstances where persons are to be employed in an establishment that is responsible for the welfare of children.[9]The claimants' terms and conditions of employment are governed by the Blue Book.[10]There are seven janitors employed at schools by the respondents. Their terms and conditions of employment are governed by the Green Book. Their employment is, however, also subject to the enhanced level Disclosure Scotland procedure and they are subject to the day to day management and direction of the Head Teacher of the schools where they work.[11]The claimants' chosen comparators are based at depots around the respondents' local authority area apart from the leisure attendant amongst them, who is based at a swimming pool. In the course of their work, the comparators travel from their depots to wherever the manual work for which they are employed requires to be performed. Thus, refuse collectors and drivers will spend their working days travelling around the respondents' local authority area collecting refuse from many different types of premises and thereafter depositing it at a tip. Road workers will be sent to wherever in the area repair and maintenance work on roads and pavements is required. The leisure attendant will spend his time carrying out duties at the swimming pool. Those employed as groundsmen will spend their working days at whichever of the respondents' outdoor open areas require to have maintenance work done on them.[12]At times, the comparators employed as groundsmen do work at school premises such as grass cutting, leaf collection, tree and hedge pruning and maintenance of sports pitches, all of which is seasonal work. Those employed as road workers may have to do repair and maintenance work on school walkways and car parks from time to time although that work is also regularly contracted out by the respondents to private contractors so that the road workers amongst the comparators spend less than 1 per cent of their time at schools. Refuse collectors collect rubbish from schools.[13]The terms and conditions of the comparators are governed by the Green Book. Their terms and conditions do not change when they attend at school premises for the above purposes. Disclosure Scotland checks only require to be carried out in respect of the comparator employed as a leisure attendant and those of the groundsmen who may have contact with the elderly.[14]There is no suggestion of the comparators who attend at school premises for the above purposes being subject to the day to day management and direction of the Head Teacher when they do so or of the Head Teacher having any measure of discretion as to who should or should not be employed in those jobs.[15]Although a single status collective agreement (known as the "Red Book"), which provides for employees in the claimants' and comparators' jobs to be subject to the same pay and grading provisions, has been entered into, it has not yet been incorporated into the contracts of employment of the claimants and their comparators.[16]The claimants' claim that they are employed on work of equal value to that of their male comparators and that they are in the "same employment" as them, for the purposes of section 1(2)(c) of the Equal Pay Act 1970 . They reserve meantime their position as to whether or not they can claim under Article 141 of the EC Treaty which provides that each member state must ensure that the principle of equal pay for male and female workers for work of equal value is applied. It was not submitted on behalf of the claimants that section 1(6) was incompatible with Article 141. RELEVANT LAW[17]The terms of section 1 of the Equal Pay Act 1970 relevant to this case are:
"(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)… (b)… (c) where a woman is employed on work which , not being work in relation to which paragraph (a) or (b) above applied is, in terms of the demands made on her (for instance under which headings as effort, skill and decision ) of equal value to that of a man in the same employment – (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 (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… . .. (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 – (a) … (b) in the case of an equality clause falling within subsection (2) (c) above, may be such a material difference. … (6) …for the purposes of this section – …men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."
[18]So, where a woman makes an equal pay claim, she requires to identify a male comparator who is in "the same employment" as her. If she can do that and she can satisfy the requirements of section 1(2)(a), (b), or (c) by showing that she is employed in like work, work rated as equivalent or work of equal value to her chosen comparator, then she is to be taken as having established a prima facie case and the burden of proof passes to the employer to show, if it can, that the variation between the contracts of employment which the woman seeks to eliminate is genuinely due to a material factor other than the difference in sex. Thus, establishing that she is in the same employment as her comparator is a significant element of her case. It does not, of itself, mean that her claim will succeed but it is a significant building block in her case against her employers and the question of whether or not it has been established will always merit careful consideration. Whether "same employment", within the meaning of section 1(6) exists as between the claimants and their proposed comparators is at the heart of the issue in this case.[19]If a woman and a man work in the same establishment, they are in the same employment and there is no need to consider whether there is any commonality between the terms and conditions in their contracts of employment. They may be the same. They may be different. That is not an issue though, because the fact of their working at the same establishment is sufficient for it to be fair to compare them. As was explained by Popplewell J, sitting in this Tribunal in the case of Lawson and others v Britfish Ltd [1987] ICR 726 , where women food processors sought to compare themselves with a general handyman employed at the same factory as them:
"We are unanimously of the view that the phrase 'and at which common terms and conditions of employment are observed' relates to the establishments in Great Britain which include that one. It does not relate to the phrase 'the same establishment'. So that once it is found that the applicants and the comparator are at the same establishment, that is all that is necessary for the applicants to prove."
(p.728D-E)[20]The Act also, however, allows a woman to seek to compare herself with a man employed by the same employer as her at a different establishment. Then matters become more complicated. Whilst Lord Bridge of Harwich has advised that the language of the subsection is "clear and unambiguous" ( Leverton v Clwyd County Council [1989] IRLR 28 HL (para 7)) a reading of the judgments in which section 1(6) has been considered at various levels from Industrial/ Employment Tribunal to House of Lords gives, rather, the impression that most have, at least initially, found it to be opaque. I would share that latter view. It is not easy to identify precisely what was intended, even after having read the relevant parts of the debates in the House of Commons and House of Lords in Hansard (House of Commons 1969-70 Vol.806, 519-522; House of Lords 1970 Vol. 310, 123-162 & 1065-1067), to which I was referred in the course of the appeal hearing. That said, I would suggest that two matters are evident from the terms used. The first is that it is not to be assumed that a woman employed at establishment A is in the same employment as a man employed at establishment B just because they are employed by the same or associated employers. The second is that, in principle, for a woman to be entitled to compare herself with a man who is employed at a different establishment, there requires to be such uniformity or commonality as between the employment régimes practised in the two establishments as to make it a fair comparison. That of course gives rise to the question of what she requires to do to demonstrate that? It is answered by the latter part of section 1(6). Having considered the terms of the subsection and of the authorities discussed below, it seems to me that she can do one of two things. She can either:(a) show that common terms and conditions are observed generally as between the establishments perhaps by relying on the fact that the women doing her class of job at establishment A are employed under the same collective agreement as the men doing her male comparator's job at establishment B (the 'paradigm, though not necessarily the only example, of the common terms and conditions of employment contemplated by the subsection' per Lord Bridge of Harwich in Leverton at paragraph 7), or(b) show that the women doing her class of job at establishment A are employed there on common terms and conditions and that men doing her comparator's class of job at establishment B and any man actually employed or who would be employed to do that class of job at establishment A are, or would be, employed on terms and conditions that are common to them (although different from the women's terms and conditions).[21]The circumstances outlined in option 'a' above arose in the case of Leverton where a nursery nurse employed at a nursery was found to be entitled to use as comparators male clerical staff employed in other establishments by the same employer because the women nursery nurses and the male clerical staff were all employed under the same "Purple Book" collective agreement. They also arose in the case of South Tyneside Metropolitan Borough Council v Anderson and Ors Employment Tribunal Case No 2502576/04 – 18.10.05; UKEAT/0559/05; 2007. IRLR 715 CA , where the claimants, who were school support staff, sought to compare themselves with males employed as drivers, street cleaners, painters, refuse collectors and a foreman who were not employed at schools and mostly had jobs that would never take them into schools. Again, the women were found to be entitled to use as comparators those males who were employed under the same "White Book" collective agreement. However, they had also sought to compare themselves with other men employed in such jobs but under "Red Book" terms and conditions i.e. under a different collective agreement from that under which the women were employed. In those cases the Employment Tribunal concluded that the women claimants and the "Red Book" comparators were not employed on common terms and conditions. There was no question of the Red Book comparators ever working at schools.[22]The circumstances outlined in 'b' above arose in the case of British Coal Corporation v Smith 1996. IRLR 404 HL, 1994. IRLR 342 CA, 1993. IRLR 308 EAT. In that case the claimants were women employed at numerous collieries as canteen workers or cleaners. The canteen workers were all employed under national arrangements which were dissociated from the mining industry. The cleaners were employed under terms which were linked to those of local authority manual workers. Thus, the women were employed on common terms and conditions across the colliery establishments. The women sought to compare themselves with male surface mineworkers. Their chosen comparators included not only men employed at the same colliery as that of each particular claimant but at other collieries as well. The surface mineworkers were all employed on terms and conditions derived from a national agreement which were held to be "common" for the purposes of section 1(6) because they were, notwithstanding some variations from colliery to colliery, broadly similar across the different collieries. That national agreement was quite different from the women's terms and conditions.[23]Thus, the factual matrix in British Coal was that the women claimants were employed on common terms and conditions as amongst the women and the male comparators were all employed, across the establishments, on common terms and conditions as amongst the men. The women and men were not, however, employed on terms and conditions that were common as between them. The issue in British Coal was different from the issue that arises in the present case and was the narrow one of whether or not the male surface mineworkers were employed on common terms and conditions given that incentive bonuses varied from one geographical area to another, as did the grants of concessionary coal. Those variations were not considered to be such as to prevent the overall terms and conditions on which they were employed being regarded as "common"; it was enough if they were broadly similar, which they were. However, in the course of his speech, Lord Slynn of Hadley made certain observations regarding the meaning and import of section 1(6) which are of assistance for present purposes:
"35. It is plain that from the beginning, although the woman had to show that her comparator or comparators ('men') was or were employed by her employer or by an associated employer of her employer, and that she could not point to higher wages being paid by other employers, yet she was not limited to selecting male workers from the place where she herself worked. The reason for this is obvious, since otherwise an employer could so arrange things as to ensure that only women worked at a particular establishment or that no man who could reasonably be considered as a possible comparator should work there . A woman can thus point to men employed in her own establishment or in other establishments of her employer in Great Britain. But the other establishments which include her establishment must be ones at which common terms and conditions of employment are observed generally or for employees of the relevant classes. The words 'which include that one' may at first sight be puzzling since she can under the earlier words point to men employed at the same establishment as hers. The words are, however, to be read with the following words: 'at which common terms…are observed'. Those common terms must be observed not only at other establishments but also at the establishment at which the woman works if employees of the relevant classes are employed there."
[24]At paragraph 37, Lord Slynn poses the critical question:
"…what is meant by common terms of ( sic ) conditions of employment and between whom do such terms and conditions have to be common?"
[25]At paragraph 38, he states that women do not have to show that they share common terms and conditions with the men to whom they seek to compare themselves. That is clear from the earlier part of section 1(6) and accords with the decision in Britfish .[26]At paragraph 39, Lord Slynn noted that it was accepted by British Coal that the women claimants though working at different collieries, all worked on terms and conditions that were common amongst them. That is not enough though, as is evident from the terms in which he then continued:
"What therefore has to be shown is that the male comparators at other establishments and at her establishment share common terms and conditions. If there are no such men at the applicant's place of work then it has to be shown that like terms and conditions would apply if men were employed there in the particular jobs concerned."
[27]Thus a woman is not prevented from using a male comparator at another establishment just because there are no males employed at her establishment to do a job in the same class as that of her proposed comparator. She can use that comparator provided she can show that he would, if employed at her establishment, be employed on terms and conditions which are broadly similar to those under which his class of employee in fact works at his establishment. Lord Slynn uses the phrase "broadly similar" as encapsulating the sense of "common" as used in the subsection. At paragraph 44, he adds:
"…The purpose of requiring common terms and conditions was to avoid it being said simply: 'a gardener does work of equal value to mine and my comparator at another establishment is a gardener.' It was necessary for the applicant to go further and show that gardeners at other establishments and at her establishment were or would be employed on broadly similar terms."
[28]Since it was referred to in the course of the hearing before me, I should refer to a passage in the South Tyneside case, in the Court of Appeal, where, in commenting on British Coal Sedley LJ refers, at paragraph 26, to what he calls Lord Slynn's "formula" as arising because: "In the absence of common terms and conditions, a way needed to be found of ascertaining whether, if they were to have been employed under the same roof, the women and men would have had common terms and conditions." which would seem to suggest that the task is to show actually or hypothetically that women's and men's terms and conditions would be common as between them. I have to confess to having some difficulty with that approach firstly because it does not accord with Britfish (which has never been disapproved) or with what Lord Slynn says at paragraph 38 and secondly because, as I read section 1(6), the task is, rather, to identify whether or not there is such commonality or uniformity in the employment régime as between the establishments that it is fair to require an employer to treat men and women employed in them on equal terms.[29]Turning to a matter which is of importance to the present case, it should be noted that whilst in British Coal the men and women were employed under different collective agreements (unlike the situation in Leverton and South Tyneside ) no question arose as to whether or not the surface mineworker comparators could have been employed at the different establishments where the claimants worked, namely other collieries. Plainly, they could have been; surface mineworkers were employed throughout the collieries. The issue that arose did so because there was some variation from colliery to colliery as to the bonus and concessionary coal terms that applied to surface mineworkers.[30]In the present case, however, although, like British Coal , the relevant men and women are employed under different collective agreements, they are employed at quite different types of establishment; no men are employed at the claimants' establishments to perform the jobs at which the comparators work and there were no findings to the effect that men ever would be employed at schools to perform those jobs. None of the authorities to which I was referred involve such circumstances.[31]I should add that Mr Napier passed up a note entitled "Is section 1(6) compliant with Article 141 and Directive 75/117EEC?" Although he made no particular submissions in respect of it, confining himself rather to an indication that the claimants' Article 141 position was reserved, I considered the note and the authorities referred to it, particularly the case of Defrenne v Societé Anonyme Belge de Navigation Aerienne Sabena [1976] ECR 455 ECJ. I have considered the terms of Article 141 in the light of the note and those authorities and considered section 1(6) in the light of it. Having done so, I do not conclude that section 1(6) is unduly restrictive or fails to transpose Article 141 into domestic law or that it is not possible to construe it clearly enough. There is, in my view, no requirement to refer the matter to the European Court of Justice for a preliminary hearing. THE TRIBUNAL'S JUDGMENT[32]At paragraph 52 the Tribunal, having considered the two separate collective agreements under which the claimants (Blue Book) and their male comparators (Green Book) were employed, concluded:
"…the tribunal was not satisfied that the claimants and their comparators are employed at establishments at which common terms and conditions are observed generally by the respondents sufficient to establish that they are in the same employment within the meaning of Section 1(6) of the Act."
[33]At paragraph 55, the Tribunal, under reference to Leverton and British Coal states:
"….. the fact the claimant and her comparator are not employed under the same collective agreement does not prevent them from working in the same establishment in terms of Section 1(6)."
[34]The Tribunal is wrong to suggest that the task is to identify whether or not the claimant and comparators are employed in the same establishment. It is not. The issue is whether they are in the same employment or not. However, later in that paragraph the issue is referred to as being whether or not they are in the "same employment" which suggests that the earlier reference to "establishment" may have been intended to be a reference to "employment". The Tribunal also seems, wrongly, to have thought that the respondents' argument in British Coal was that the claimants required to be employed on the same terms and conditions as their comparators, which was not the case, as above noted. However, the Tribunal correctly states at the end of that paragraph that it was held in British Coal that it was sufficient for a claimant to show that her comparators at another establishment and at her establishment were or would be employed on broadly similar terms.[35]At paragraph 57, the Tribunal sets out to apply the British Coal reasoning to the present case and asks itself whether the terms and conditions of the comparator class are sufficiently similar for a fair comparison to be made with the claimant classes' terms and conditions. At line 27, having observed that all the comparators are employed on Green Book terms and conditions, it continues:
"Therefore the earlier concerns about differences in pay and grading do not apply to the issue of commonality between the comparators' terms and conditions as they are all employed under the same collective agreement, namely the Green Book…"
[36]However, the relevant question for the Tribunal was not whether or not the comparators were in fact all employed on common terms and conditions but was that of what terms and conditions would apply to them if they were employed at the establishments where the claimants worked, namely the respondents' schools. It is, accordingly, not clear why the Tribunal make that observation and could be indicative of misdirection on its part.[37]However, the Tribunal continues by reviewing the judgments in the South Tyneside case, at its various stages, and at paragraph 61, concludes that it was necessary:
"….to consider what terms and conditions would apply to the comparators if they were employed at the claimants' establishment."
[38]The Tribunal rejected a submission advanced on behalf of the respondents to the effect that the present case was comparable to that involved in the "Red Book" comparator part of the South Tyneside case but it seems possible from the terms of paragraph 61 that the argument was misunderstood.[39]At the paragraph erroneously numbered as 61 (but which must have been intended to be 62), the Tribunal states that, according to Lord Slynn in British Coal , to answer the question that is identified in the quotation above:
"…this may well involve consideration of a hypothetical situation. It is not enough therefore for the respondents to say that the comparators would never be employed at the claimants' establishment."
[40]Thus, the Tribunal's approach is to say that even where there would never be an employee of the comparator class employed at the establishment where the claimant is employed, it is possible to construct a hypothesis as to the terms on which the comparator would be employed there. Thus, to take up the example of Lord Slynn's gardener, the Tribunal's approach would allow a woman employed in a clerical role at an establishment on the fifth floor of an office block without so much as a window box requiring the services of a gardener, to compare herself with a gardener employed by her employer at another establishment where there are extensive grounds to be cared for even although on no view could or would a gardener ever be employed in those office premises.[41]In reaching its conclusion that the claimants could point to the Green Book manual workers as appropriate comparators, it took account of the following; at times, some of the comparators carry out work at schools, when the comparators carry out work at schools their terms and conditions of employment remain on Green Book terms and conditions and there was no persuasive evidence that in the event the comparators were based at the same establishment as the claimants they would be employed on terms other than the Green Book. It then states:
"In these circumstances the Tribunal did not, as suggested by the respondents, find it impossible to conclude that the comparators, including Leisure Attendants on the basis that schools have leisure facilities and swimming pools, could be employed on broadly similar terms to those conditions under which they are currently employed. Accordingly, for the purposes of Section 1(6) of the Act, the claimants and comparators are employed at different establishments on which common terms and conditions of employment are observed for the claimants and comparators."
[42]The Tribunal made no findings in fact regarding any leisure facilities and swimming pools at the respondents' schools nor did it make any findings that at a school, the services of a leisure attendant would ever be required in connection with them. It is not obvious that they would. As to the other types of work carried out by the comparators, the Tribunal's findings in fact were confined to those above. There were no findings that they are in fact ever employed at schools nor that they would be employed to carry out those jobs at schools. Further, the Tribunal does not appear to have given any consideration to the important requirement of compliance with the Disclosure Scotland procedure to which I have referred when considering the question of what terms and conditions would apply to the comparators if employed at schools. Nor did it consider as a separate issue the question of whether persons would ever be employed at schools to carry out the jobs for which the comparators are employed. THE APPEAL[43]On behalf of the respondents, Mr Truscott submitted that the Tribunal had erred in law in finding that the claimants and their comparators were in the same employment. Had they properly applied the section 1(6) test in the light of the guidance in British Coal , they would have found to the contrary. Mr Truscott carefully and thoroughly reviewed the authorities. He submitted that whilst the authorities demonstrated that the comparisons available to women claimants in equal pay cases had been opened out by judicial interpretation, that width did not extend to the circumstances of the present case. The comparators were not employed at schools. The comparators would not be employed in their jobs at schools; there was, for instance, no need for a refuse collector to be employed at a school. It was ludicrous to suggest that that could happen. The fact that some of the comparators attended schools for certain purposes was irrelevant. Even so, some of them, such as the leisure attendant never attended at schools. It had never been argued before the Tribunal that there was any possibility of the comparators being employed at schools. They were not obviously translocatable. It was an essential part of Lord Slynn's test that there was a real possibility of the comparator being transferred to the claimant's establishment. Even if there was a possibility of the comparators being employed at schools, the finding that they retained Green Book terms and conditions at present did not indicate that those terms would not vary significantly in that event. There was no question of the findings amounting to the men being assigned to schools when, for instance, collecting refuse from them.[44]Overall, there was, in Mr Truscott's submission, a fundamental flaw in the Tribunal's reasoning. Whilst he took no issue with it having found that all the comparators were employed on Green Book terms and conditions (which were materially different from the Blue Book) that takes one no further than recognising that the comparators were all on Green Book terms and conditions. It was not the same as finding that the requirements of section 1(6) were satisfied. The Tribunal had gone no further than allowing its reasoning to revolve around persons who attended at school premises for various purposes and who retained their Green Book terms when doing so but that was not the test. The reality was that the claimants were seeking to cherry pick in a way that the legislation did not entitle them to do. There was a group of comparators available to them who worked at schools, namely, the janitors. The respondents accepted that it was open to the claimants to compare themselves with that group. There was no injustice in suggesting that that be done. The claimants did not wish to use the janitors because they were not in receipt of the bonuses received by the other Green Book men to whom they did seek to compare themselves but that was not a good enough reason for sanctioning their approach. The short answer by the Tribunal should have been that the comparators would not have been employed at schools and that would have been an end of matters.[45]The problem for the claimants was summarised by Mr Truscott as being that there was no commonality in terms and conditions of women employed at schools and at depots (there were no findings of women employed on Blue Book terms at depots), there was no commonality of terms and conditions as between men employed at the depots and those men being employed at schools (there being no real possibility of that ever happening), there was no commonality of terms and conditions as between the women and the men and there were no general terms and conditions that applied across the schools and depots. A limit was demonstrated, on the authorities, and this case went beyond the limit.[46]For the claimants, Mr Napier drew attention to the fact that success in the appeal would not mean that the claimants' cases would succeed. They would still have to satisfy the whole of section 1(2)(c) of the Act and then the respondents would have section 1(3) available to them. Such a defence may succeed even in the absence of objective justification if an employer can establish, simply, that sex is not in fact the reason for the differential in pay ( Coventry City Council v Nicholls [2009] UKEAT/0162/08). If it was the case that there were anomalies and the structure of the women's and men's pay arose from totally dissimilar concepts then that could be picked up in the course of the section 1(3) defence.[47]Mr Napier, under reference to the case of North Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176 submitted that the fact that there was nothing in European law that limited the different establishments on which a claimant could rely militated against making it more difficult for a valid comparison to be made where the claimant and comparator work at different establishments. Section 1(6) should not be read as restricting comparisons where claimant and comparator worked in different establishments. Mr Napier also referred to Enderby v Frenchay Health Authority & another [1993] IRLR 591 and submitted that it showed that it was envisaged that comparisons could be made between individuals whose terms were governed by different collective agreements (a proposition with which Mr Truscott did not take issue). He did not, however, submit that section 1(6) was incompatible with Article 141 and, as noted above, reserved his right to advance a claim based on Article 141 at a later date.[48]Turning to the Tribunal's findings, Mr Napier accepted that they were that the comparators would not have been employed at schools to do the jobs that they performed when based at the depots. He submitted, however, that the male comparator would not have to carry out the same duties at the woman's establishment before he could be relied on as a comparator. He submitted that to follow the respondents' approach would be to unduly and improperly limit equal pay claims. The requirements of section 1(6) could be satisfied where a woman compared herself with a man employed at the same establishment, where the man was employed in a different establishment under the same collective agreement as the woman or on other common terms and conditions with her, and where the man was employed at a different establishment on different terms and conditions and was deemed to be employed at the woman's establishment. It would be enough for the last of these if he could be deemed to be employed at the woman's establishment on terms and conditions that were broadly similar to those under which he was employed at his own establishment. The Tribunal had deemed the comparators to be employed at schools and found that they would have been on the same Green Book terms as they are employed under at present. The appeal should be refused. CROSS APPEAL[49]The claimants cross appealed. They refer to a passage in paragraph 52 in the Tribunal's judgment as follows:
"While there has been joint bargaining in relation to annual pay increases for claimants and comparators for some time, the Tribunal was still unable to accept that this altered the position that different pay scales and grading exist and determine the rates of pay for claimants and comparators."
[50]That follows a passage in which the fact that the claimants and comparators remained employed under different collective agreements was discussed.[51]The ground of cross appeal, under reference to the above passage from paragraph 52 submits that the Tribunal erred in law in rejecting the claimants' submission that overall there were common terms and conditions amongst the claimants and their comparators.[52]Mr Napier explained that the purpose of the cross appeal was to enable the claimants, if the respondents were successful in the main appeal, to access their comparators by another route. The fact of separate collective agreements did not mean that there was no commonality of terms and conditions as between men and women. He took the argument no further than that.[53]For the respondents, Mr Truscott resisted the cross appeal. It was wholly inadequate as a challenge. It did not indicate whether the challenge was being advanced as a question of law or a case of perversity. It was accepted that the existence of separate collective agreements did not necessarily mean that there was no commonality but in this case, the Tribunal had explained why it regarded the men and women's terms and conditions as not being sufficiently common for the purposes of section 1(6). DISCUSSION AND DECISION[54]I turn firstly to the issue of whether the claimants required to show that there was a real possibility of their comparators being employed at schools. Although the inclusion in section 1(6) of the words "which include that one" might seem to suggest that the male with whom a woman seeks to compare herself must be employed, for at least some of his time, at the same establishment as the woman, if it were interpreted in that way, a woman's equal pay claim could be frustrated by her employer choosing to exclude men from her establishment altogether. Hence the approach set out by Lord Slynn in British Coal where, at paragraph 39, he referred to it being open to a woman to show that common terms and conditions would apply if men were employed at her establishment. Insofar as the Tribunal regarded that as, in principle, sanctioning the carrying out of a hypothetical exercise, it did not fall into error. It is of the nature of any hypothesis that it is based on assumption rather than fact but a question arises as to how far, when applying section 1(6) of the Act such assumptions can properly go. The issue that arises in this case is whether they can go as far as to be based on an assumption as to a set of facts that would never in fact occur? Mr Truscott says there has to be a limit and the bar should come down once one is at the stage of assuming something could happen that would not happen. Mr Napier says, in effect, that there is no limit and that the comparators can be "deemed into" the claimants' establishment if they have common terms and conditions amongst themselves.[55]Insofar as Mr Napier's submission was based on an approach which focussed on the availability to the respondents of the section 1(3) defence and the need for the claimant to show that she qualified under the other parts of section 1(2)(c), I would reject it. The claimant cannot be excused the need to satisfy the criteria for "same employment" under section 1(6) just because the section affords the employers other "strings to their bow". However, there remains the more substantial argument that the provisions simply allow for deeming the comparator to be employed at the same establishment as the claimant without the need for that to be shown to be a possibility.[56]In reaching a conclusion on the competing arguments, I find assistance firstly, in Lord Slynn's "gardener" example, at paragraph 44. There, he explains that the woman would require, in addition to showing that gardeners at other establishments were employed on certain terms, that gardeners employed at her establishment would be employed on broadly similar terms. He thus seems to envisage that the woman will be able to show that a gardener could be employed at her establishment; a clear mental image is created of the gardener comparators tending plants both at the establishments where they are actually employed and at the woman's establishment. However, that is not a picture that could possibly arise if, for instance, the woman was employed at the gardenless and plantless fifth floor office establishment in the example to which I refer in the "Relevant Law" section above.[57]Secondly, it is of assistance, in my view, to bear in mind the purpose of section 1(6) which is to allow a woman to compare herself with a man in another of her employers' establishments but only where there are factors which show that there is a commonality or uniformity of employment régime as between them. If the comparator's job is a job that is simply not one for which persons are in fact employed at the woman's establishment that weighs against such commonality of régime. If, further, there is no real possibility of persons being employed there to perform the comparator's job or any job that is broadly similar to it, that weighs substantially against the requisite commonality of régime.[58]Thirdly, it seems simply inappropriate to construct a hypothesis on a basis of a set of facts which, in the real world, is not going to occur.[59]I conclude, in these circumstances, that where a woman seeks to use a male comparator that is not employed at her establishment, she requires to show a real possibility of him being employed there in the job he carries out at the other establishment or in a broadly similar job. Then, it is necessary for her to show that the terms and conditions on which he would be employed at her establishment would be broadly similar to those under which the class of which he is a member are employed at his establishment. That will involve taking account of any particular conditions that apply to all employees at her establishment.[60]Turning to the Tribunal's reasoning, at page 41, it rejects the submission that it was enough for the respondents to say that the comparators would never have been employed at the claimants' establishments on, it seems, the basis that Lord Slynn held that a hypothetical situation may be required. The Tribunal has, however, in my view, misdirected itself as to what Lord Slynn held, as I have explained above. The Tribunal then refers to the fact that comparators undertake work that is necessary for the operation of school premises. That is no doubt correct but it does not follow that they are employed at those establishments just as many other persons who carry out work which is necessary for the operation of school premises are not employed there, ranging from the contractor who attends on a seasonal basis to clear the gutters to the person who delivers the stationary supplies. If the comments that the Tribunal makes at this point are intended to be a finding that the comparators did work at the claimants' establishments or that it was possible for them to do so, it was not a finding which, on the evidence the Tribunal was entitled to make.[61]The Tribunal also states that leisure attendants could be employed at the schools because there are schools which have swimming pools and leisure facilities. The Tribunal has, however, jumped to a conclusion that had no evidential basis. Whilst I was advised in the course of the appeal hearing that it is correct to state that a small number of the respondents' schools have swimming pools, it does not follow at all that persons would be employed at schools as "leisure attendants" and there was no evidence before the Tribunal that there would ever be such employees.[62]Even if it had been possible for the comparators to be employed at the claimant's establishments that would not, of itself have been enough to satisfy the requirements of section 1(6). There would require to have been findings in fact to support a conclusion that they would have been employed on terms and conditions that were broadly similar to those on which they were employed at the depots and swimming pool. On the Tribunal's findings, any person employed at the schools would require to satisfy the Disclosure Scotland check procedures and would also, once employed at a school, be subject to the day to day management and direction of the head teacher. The former of these is, as explained above, a significant and very important requirement that does not apply to the comparators apart from the leisure attendant and a small number of groundsmen. The latter also casts employment at a school in a rather different light. The Tribunal has, however, given no consideration to the question of whether, once these differences in contractual basis are taken into account, the terms and conditions would be broadly similar as between the establishments. There could, on the Tribunal's findings, be other differences as well such as whether or not the posts would be full or part time and what difference that might make to the terms and conditions. Rather, the Tribunal refers to the fact that when the comparators attend at schools to carry out work there at present (in the context of being employed at a different establishment, not in the context of being employed at the schools), they remain on their Green Book terms (which is hardly surprising) and concludes that they would remain on those terms and conditions if they were employed at schools. In recognition, perhaps, of there being a gap in its reasoning, the Tribunal adds, at page 41, that there was no persuasive evidence that the comparators would not be employed on the Green Book terms and conditions. In short, I am persuaded that the Tribunal, despite articulating the correct question (on what terms and conditions would the comparators be employed?) did not in fact answer it. If they had done, it would not, in my view, have been open to them, on the basis of the findings that they made, to answer it to the effect that they would have been broadly similar.[63]Turning to the cross appeal, I accept that Mr Truscott's criticisms of it were well made. In particular, the Tribunal did not approach matters on the basis that, in principle, the existence of separate collective agreements precluded a finding of commonality of terms and conditions, as seemed to be the claimant's apprehension. The Tribunal compared the nature of the terms and conditions in the Green Book with those in the Blue Book and identified what it evidently regarded as significant differences between them. DISPOSAL[64]In all these circumstances, I am satisfied that the appeal should be upheld and there be substituted for the Judgment of the Tribunal a Judgment that the claimants and their comparators were not in the same employment within the meaning of Section 1(6) of the Equal Pay Act 1970 . Mindful of the claimants' specific reservation of their position as regards any case open to them under reference to Article 141, I will then remit the claims to the Tribunal to proceed as accords.[65]I will also pronounce an order dismissing the cross appeal.