EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Paton Lord Hardie	[2011] CSIH 70 XA94/10 OPINION OF LORD EASSIE in the Appeal under section 37(1) of the Employment Tribunals Act by CITY OF EDINBURGH COUNCIL Respondent and Appellants; against CHRISTINA WILKINSON and OTHERS Claimants and Respondents; and ALISON McLEOD and OTHERS Claimants and Respondents; _______

Respondent and Appellants: Truscott, Q.C., Marsh; Head of Legal Services, City of Edinburgh Council

First Group of Claimants and Respondents (Christina Wilkinson and others): J.J. Mitchell, Q.C.; Balfour + Manson LLP

Second Group of Claimants and Respondents (Alison McLeod and others): Napier, Q.C.; Thompsons

15 November 2011

Introductory

[1] This appeal under section 37(1) of the Employment Tribunals Act 1996 relates to 52 equal pay claims brought by women employed in a variety of posts by the appellants - The City of Edinburgh Council, for brevity "the council". In the main they are employed in schools, hostels, libraries or in social work. The posts were formerly known in the parlance of local government employment as "APT & C" - "Administrative Professional Technical & Clerical". A number of the claimants are represented by the firm of solicitors now known as Fox Cross and this group is referred to in the proceedings as the "Fox Cross claimants". The remainder of the claimants are represented by Thompsons, solicitors, and are referred to as "the Thompsons claimants". Each group was represented by separate counsel in both the Employment Tribunal, the Employment Appeal Tribunal and in the appeal before this Court. By interlocutor of 31 May 2011 the Court allowed the Commission for Equality and Human Rights to lodge written submissions. The Commission lodged helpful submissions, particularly in respect of the European law issues potentially arising in this appeal. The other parties also lodged extensive written argument.

[2] The claimants do not contend that they and the male employees with whom they seek to compare themselves do "like work"; nor do they contend that they do work which is "rated as equivalent". The basis of their claims is that they do work which they contend is of "equal value" to the work performed by the male comparators.

[3] Those male comparators are all employed by the council in posts which were formerly classified in the terminology of local government employment as "manual". They include jobs as road workers, refuse collectors, gardeners and grave diggers. None of them works in the same place as any of the claimants.

[4] The distinction between "APT & C" and "manual" posts was not one of simple nomenclature. Each category had different terms and conditions of employment, resulting from the fact that prior to 1999 the two categories had distinct trade union representation and collective bargaining was carried out separately. Those negotiations produced different collective agreements, with different salary scales and terms and conditions. The terms and conditions resulting from those separate negotiations were, understandably, set out in separate documents, distinguished by their colour. Thus the APT & C collective agreement was known in Scotland as the "Blue Book"; and the "manual" collective agreement was known as the "Green Book" (a broadly similar arrangement obtained in local government in England and Wales, but there different colours were chosen for the resulting documentation).

[5] In 1999 however a collective agreement was concluded in Scotland termed "The Single Status Agreement". Paragraph 16 of the judgment delivered by the Employment Tribunal says, inter alia, this about that agreement:

"The background to the introduction of the Single Status Agreements both in the UK (other than Scotland) in 1997 and in Scotland in 1999 was the discriminatory pay practices, recognised by both employers and trade unions arising out of the differences in treatment between the groups then categorised as Manual workers and APT & C staff, in particular with regard to bonus payments and working hours. The drive was to harmonise the terms and conditions of employment. It was agreed that there was a need for a single national agreement applying to both categories of worker. There was a need for national bargaining in vital areas and a better deal for female workers via an equality-proofed Job Evaluation Scheme ("JES"). It was agreed between the employers and trade unions that there was widespread pay discrimination and that the only alternative to litigation was a new national agreement and the introduction of a non-discriminatory JES."

[6] The 1999 Single Status Agreement, which came into force on 1 July 1999, resulted in the production of a new document, which was termed the "Red Book". The extent to which the Red Book properly superseded the terms of the Green Book and the Blue Book, rather than, at least in part, simply continuing and incorporating the terms of the Green and Blue Books was a matter of debate and controversy before both the Employment Tribunal and the Employment Appeal Tribunal and also before this Court. At the time at which the equal pay claims were lodged with the Employment Tribunal, the JES had not been completed within all the departments of the council. We were given to understand that the exercise was achieved on 4 October 2010; and that thus the claims with which these proceedings are concerned relate to the period prior to that date.

[7] The present appeal is concerned with what is in effect a preliminary plea or objection taken by the employer. It relates to whether the male comparators selected by the claimants can be said to be relevant, or admissible, comparators. Counsel referred to this being a "jurisdictional issue". That is no doubt a convenient way of describing the matter, although whether it be a juridically sound description may perhaps be open to debate. The preliminary objection to the comparators was the subject of a relatively lengthy hearing before the Employment Tribunal (constituted as a single employment judge) in the summer of 2008 and followed a somewhat protracted, preliminary procedural process. The Employment Judge (Mr K J McGowan) gave his judgment on 1 October 2008. It extends to over 201 pages and contains 541 paragraphs, but much of it consists of a reproduction of the parties' extensive written submissions. (For my part, I have to say that I did not find that approach of simply copying those submissions particularly helpful.) The ultimate conclusions of the Employment Judge are to be found in paragraph 540, in which he sets out, and answers, the questions presented to him for decision as follows:

"1. Are the Claimants and the comparators employed in the same establishment? No.

2. Are the Claimants and their comparators employed on common terms and conditions (ie. under the Red Book)? Yes.

3. Are the Claimants and their comparators employed by the Respondent at different establishments at which the Respondent observes broadly the same terms and conditions for employees in the Claimants' class and the same (but separate) terms and conditions for employees in the comparators' class? Yes.

4. Are the Claimants and the comparators employed in the same service? Yes.

5. Is there is a single source of pay which is applicable to the employer both to Claimants and the comparators? Yes."

As will become apparent, the Employment Judge thereby found in favour of the claimants on the jurisdictional issue.

[8] The council appealed against that judgment to the Employment Appeal Tribunal. The Fox Cross appellants cross-appealed against that judgment in respect of the answer given by the Employment Judge to the first question set out in paragraph 540 of his judgment. The appeal was heard by the President of the Employment Appeal Tribunal in Scotland (Lady Smith) sitting alone. The judge in the Employment Appeal Tribunal dismissed the appeal by the council; but she allowed the cross-appeal. The council now appeals against both the dismissal by the judge in the Employment Appeal Tribunal of their appeal and the allowance by her of the cross-appeal by the Fox Cross claimants.

[9] Of the questions presented to the Employment Tribunal for decision, which are set out in paragraph 540 of the judgment and are quoted above, the first three flow essentially from the terms of the pertinent domestic legislation obtaining at the relevant time, namely section 1, and particularly section 1(6), of the Equal Pay Act 1970 (as amended). The remaining two questions or issues are prompted by the terms of certain judgments given by the Court of Justice of the European Communities (now the Court of Justice of the European Union) on equal pay matters respecting the proper interpretation of the EC Treaty and secondary instruments. The approach of counsel for the two groups of claimants to those European law issues differed somewhat. Put very shortly, Mr Mitchell, for the Fox Cross claimants, sought to present the European legislative texts and the Court of Justice's decisions as offering an alternative, discrete ground of claim to that in the domestic legislation. For his part, Mr Napier, for the Thompson claimants, invoked those texts and that jurisprudence essentially as shaping the proper construction or interpretation of the domestic legislation in issue.

[10] Against that background it is, I think, convenient first to consider the issues flowing from the interpretation of the domestic legislation. As already indicated, that legislation is to be found in section 1 of the Equal Pay Act 1970 - "the Act" - which provides inter alia:

"1. Requirement of Equal Treatment for Men and Women in same employment

(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 - ...

(c) where a woman is employed on work ... which is, in terms of the demands made on her (for instance under such 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 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 ...

(6) ... and 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."

The issues arising respecting this legislation may be shortly described, and were referred to in argument, as (i) "the same establishment" question; and if that be resolved contrary to the view of the Employment Appeal Tribunal, (ii) the "same terms and conditions" issue.

Same establishment

[11] As already indicated, the Employment Judge answered the question whether the claimants and the comparators were employed in the same establishment in the negative, and thus adversely to the contention which had been advanced to him by the claimants. The Employment Judge, in reaching that conclusion, noted the decisions of the Court of Justice in Case C-449/93 Rockfon A/S v Specialarbejderforbundet i Danmark [1995] ECR 1-4291 and in Case C-270/05 Athinaïki Chartopiia AE v Panagiotidis [2007] ECR 1-1499, to the former of which an employment appeal tribunal had had regard in considering the question of "same establishment" in its decision in Dolphin and Others v Hartlepool Borough Council and Others EAT/684/05 (9 August 2006). The Employment Judge then concluded (at paragraph 441 of his judgment) that the question was one of fact which he should approach on the basis that it was a "multi factorial test", which he explained as meaning:

"... that it is the question of assessing the relevant factors such as (but not restricted to) exclusive (or non-exclusive) occupation of premises; the degree of permanence of arrangements; the way in which management and staff are organised; degree of managerial autonomy - and any other relevant factors which might emerge on a case by case basis."

[12] The Employment Judge then made these findings in fact:

"445 The Claimants and comparators are based at different physical locations. These locations in the context of the Respondent as an undertaking, are distinct entities. These entities have a high degree of permanence and stability. They exist to perform specific tasks and have their own workforce, technical means and organisational structures. The entities also have varying degrees of financial and organisational autonomy."

The Employment Judge went on to consider the effect, if any, of the work of some of the comparators being peripatetic and also the existence of contractual "mobility clauses" and their limited exercise in practice. Having noted that the contracts of employment provided for assignment to specific locations, he proceeded to say in paragraph 448:

"448 Looking at the matter in that way, I have concluded that as the Claimants and comparators are not assigned (taking account of the factors mentioned above) to the same locations as the comparators and (sic) it cannot be said that they work in the same establishment..."

[13] The approach of the Employment Appeal Tribunal to the issue whether the claimants and the comparators were employed in the same establishment was rather different. After some background observations the EAT judge, at paragraphs 66 to 68 of her judgment discusses the decision in Rockfon A/S v Specialarbejderforbundet i Danmark, expressing among others, the view that it may:

"be unduly restrictive to equiparate the concept of establishment to circumstances where employees work at a single geographical location, which was the approach of the employment judge."

At paragraph 69 of her judgment the EAT judge says:

"69. Returning to the question of what, in this case, falls to be regarded as the relevant unit for 'establishment' purposes, I am not persuaded that it is as simple as asking: where did each Claimant work? The Council is a single corporate body which has a multiplicity of statutory powers and duties for the execution and fulfilment of which it can and does employ many people, including the Claimants and their comparators to work in different places and in many different roles. The starting point must, in my view, be that not only is the Council a single undertaking but prima facie, it is a single establishment and only if the facts demonstrate that there are subsets of its operation which ought properly to be regarded as separate establishments, will that presumption be set aside."

[14] In the succeeding paragraph of her judgment the EAT judge adverts, briefly, to the terms of the contracts of employment of the claimants and the comparators, noting that while some specify the department in which the employee's post is located, others do not. Two of the latter category (being claimants) are selected by way of example. She further notes, subject to what the Employment Judge found as to its practical operation, that the contracts generally contained a "mobility" clause.

[15] The judge then expresses her conclusions on this issue in the next paragraph of her judgment, paragraph 71, which is in these terms:

"71. Considering then the findings about the Claimants workplaces, whilst some of the Claimants were and are employed at schools, each of which could be expected to have its own identity and whose daily operation could be expected to be directed by the head teacher, there is much by way of purpose, management and control in local authority educational services that is directed centrally and so referring to the fact that they worked at schools does not of itself indicate work at a separate establishment. Other Claimants had posts which involved them working in different places in the city and as is evident from the findings at pages 14 to 21 (sic) of the Employment Tribunal judgment, some of them had posts which required them working across the community, for instance the post of Assistant Area Manager (work at head office and in various schools), the post of Community Rehabilitation Support Worker (work in the community in people's (sic) homes), or the post of Field Supervisor (management of the effective operation of catering units throughout the city). Although, in his discussion, the Employment Judge refers (at paragraph 445) to the physical locations at which the Claimants work being 'distinct entities' there are no related findings in fact explanatory of that comment. His use of the concept 'entities' is not further explained. The findings do not demonstrate that the 'entities' to which he refers can fairly and reasonably be regarded as distinct groups of employees for equal pay claim purposes. Further, the added observation he makes in that paragraph that those entities 'have varying degrees of financial and organisational autonomy' would seem to point away from all the Claimants being assigned to separate and distinct establishment if that word is used in the sense that I have discussed since it seems indicative of a lack of cohesion and uniformity of purpose. Also, as I have observed in the 'Background' section above the Council's departmental structure does not seem to be directly aligned to its separate statutory functions, that structure changes and at least some of the Claimants' jobs seem to be in the same department as those of the comparators. I cannot, in all the circumstances, conclude that the Employment Judge was entitled, on the facts found by him, to conclude that the Claimants and their comparators were employed at different establishments. Rather, on the facts, the only conclusion open to him was that the Council itself was a single 'establishment' within the meaning of section 1(6), the facts not demonstrating otherwise. Thus he ought to have held that the Claimants and their comparators worked at the same establishment and the cross appeal, which was supported by Mr Allan on behalf of the Thompsons Claimants, must accordingly, succeed."

[16] Counsel for the appellants - the council - submitted that the approach to this issue adopted by the EAT judge was erroneous. Ever since the introduction of the concept of establishment into employment law it had been seen as referring, at least primarily, to a place of work and was thus not to be equiparated with, or presumed to be, the employer's undertaking. In support of that submission reference was made to Lord Advocate v Babcock & Wilcox (Operations) Ltd 1972 SC (HL) 1; Barratt Developments (Bradford) Ltd v UCATT [1978] ICR 319; Rockfon A/S v Specialarbejderforbundet i Danmark and Athinaïki Chartopiia AE v Panagiotidis; MSF v Refuge Assurance plc [2002] ICR 1365; Dolphin & Others v Hartlepool Borough Council; North Cumbria Acute Hospitals NHS Trust v Potter & Others [2009] IRLR 176; and North & Others v Dumfries and Galloway Council [2011] CSIH 2 (7 January 2011). More particularly, counsel submitted that the EAT judge was in error in stating in paragraph 69 of her judgment that there was a presumption that the employer, the City of Edinburgh Council, was a single undertaking and thus a single establishment. No such presumption could be divined from the terms of the Act; had it been intended, at least presumptively, that the entirety of an undertaking constituted a single establishment, the Act would have been differently framed and structured. The existence of some central management functions did not mean that there were not separate establishments within an undertaking. The invocation by the EAT judge of the existence of mobility clauses in the contracts of employment was clearly erroneous; a contractual power to assign an employee to a different establishment was well capable of being consistent with the existence of discrete establishments within the overall undertaking. The criticisms made of the Employment Judge's findings were not warranted.

[17] The argument for the Fox Cross claimants sought to uphold the approach of the EAT judge. The word "establishment" was ambiguous, reference being made to some of the definitions offered in the Oxford English Dictionary. To give to the term the narrow meaning of a place of work would not be compatible with the general principle on equal pay set out in Article 157 of the Treaty on the Functioning of the European Union (formerly Article 119 of the EEC Treaty) - cf case C-143/83 EC Commission v Denmark [1985] ECR 427, page 428ff. The decision in the Rockfon A/S v Specialarbejderforbundet i Danmark adopted a narrow meaning of "establishment" in order "to afford greater protection for workers", thus demonstrating the necessity of adopting a purposive approach to interpretation when it occurs in that Act. Given the particular objective of the legislative text under consideration in Rockfon, namely consultation and other procedures where redundancy was proposed, the interpretation settled by the Court of Justice of the EC could not simply be transferred to equal pay legislation, with its different employee protection purpose. Insofar as the employment appeal tribunal in Dolphin & Others v Hartlepool District Council & Others did just that, it was in error.

[18] The argument for the Thompson claimants proceeded upon broadly similar lines. The entry into United Kingdom statutory language of the notion of "establishment" preceded the accession of the United Kingdom to the European Communities. That language now required to be interpreted purposively as favouring the principle of equal pay, set out in the EU Treaties.

[19] Having reflected upon these competing contentions, I have come to the view that there is force in the submission advanced by counsel for the appellants - the council - on this branch of the case. It is, I think, clear from the terms of section 1(6) of the Act that the legislation treats the notion of an establishment as something distinct from the whole undertaking of the employer (or associated employer). Had it been the legislative intention that it was sufficient for the claimant and her comparator to have the same employer, that could readily have found expression by a requirement to the simple effect that the female worker and the male comparator or comparators be employed by the same employer (or associated employer); reference to other establishments in Great Britain would be unnecessary. Nor do I find in the legislative text anything which points to an intention that there should be a presumption that the whole undertaking should constitute a single establishment.

[20] When the Act was passed by Parliament the concepts of an establishment from which a person works, and of a single employer having a plurality of establishments, were concepts which were to be found in earlier legislation on selective employment tax. That legislation was considered by the House of Lords in Lord Advocate v Babcock & Wilcox (Operations) Ltd and approval was there given to the guidance given by Lord Parker CJ in The Secretary of State for Employment and Productivity v Vic Hallam Ltd (1970) 5 ICR 108-110. Lord Parker said:

"For my part I find it quite impossible to give any exclusive definition or test as to what constitutes an establishment. The tribunal said that they approached the matter as one of broad commonsense. For my part I think that is the correct approach in deciding whether as a matter of fact and degree any particular premises do constitute an establishment. But as it seems to me there are certain indications which help in the matter. The first is one to which I have already referred, exclusive occupation of premises; secondly, some degree of permanence - both those are present in this case - and thirdly, as it seems to me, some organisation on the premises, an organisation of the men who are working there. Finally, the question whether a particular premises is an establishment is bound up with the question of where the men who are working there are being employed in or from, because by section 1(2) it is provided that: "... this section applies to any employment in, or carried out from, an establishment ..." therefore an establishment must be a place in or from which people are employed."

In addition to giving (along with the rest of their Lordships) his approval to that passage, Lord Simon observed, at page 18:

"'Establishment' is a word of wide meaning. Among other, different, senses, it can signify, on the one hand, a body of persons (generally an organised body) or, on the other hand, premises - with a number of senses intermediate between these two. I think that any attempt at exhaustive judicial definition would be inappropriate where the draftsman himself has not attempted to define; but what this word conveys to me in its instant context is a body of persons carrying on activities by way of business - see the Selective Employment Payments Act, 1966, section 1(2)(a) - associated with a locality."

In my view the context in which the phrase "at an establishment" is used in section 1(6) of the Act - the preposition deployed is "at", not "in" - similarly conveys an association with a locality; "establishment" is not, to my mind, being deployed simply in the incorporeal sense of being a body or an undertaking.

[21] That is not to say that organisational matters are not relevant to identifying the establishment and its location. In elucidating in its judgment in Rockfon A/S v Specialarbejderforbundet i Danmark the terms employed in the various language versions for the word which in the English version of Article 1 of Council Directive 75/129/EEC of 17 February 1975 on the approximation of laws of the Member States relating to collective redundancies
[1] appears as "establishments", the Court of Justice placed perhaps greater emphasis on location in terms of organisational structures, when it ruled that the respective terms should be understood "as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties;". While I recognise that, as counsel for the claimants pointed out, the employee protective purpose of the directive is different from the protective purpose in equal pay legislation, the notion of assignation of an employee within an organisational structure may be a relevant factor when addressing the matter in the context of the latter purpose. I would also observe that while the Court of Justice noted in Athinaïki Chartopoiia AE v Panagiotidis, for the purposes of the directive, a distinct geographical separation might not be essential for the constitution of such a "unit", it respectfully appears to me that a distinct geographical location may, depending on the circumstances, constitute an important definitional element in identifying the establishment.

[22] In these circumstances I consider that counsel for the appellants was well founded in maintaining that, as deployed in section 1(6) of the Act, the term "establishment" is largely directed to the place of work. By that I did not understand counsel to mean an individual's particular place of work in the sense that, within any factory complex, or grouping of buildings, an individual may have his own workplace in a particular room or building, but rather the broader notion of a place of work consisting, for example, of a complex or the grouping of buildings as a whole. Thus a laboratory assistant employed by a university at a particular campus may have her place of work at her laboratory bench in one of its buildings but the establishment in which she works may, in my view, properly be seen as the campus in question. Similarly, it seems to me that a school within the area of an education authority may readily be seen as an establishment, being a recognisable location at which a discrete body of employees of the education authority works; and any one of those employees, if asked where he or she worked, would probably answer by giving the name of their particular school - a fortiori if asked at which educational establishment he or she worked. It is no doubt the case that the education authority holds certain central management powers in respect of all its schools but, with all respect to the EAT judge in the present case, I do not consider that those powers prevent a given school being an establishment. The statute contemplates that an employer may have distinct establishments; but any employer having distinct establishments will inevitably retain some central powers respecting its various establishments. Similarly, an employer which has a plurality of establishments may include in its contracts of employment a mobility clause; but the power to move an employee from one place or establishment to another is not inconsistent with the existence of a plurality of establishments - indeed it may often be a reflection of the existence of such separate establishments within the employer's undertaking. And, in my view, the fact that the particular job of an employee involves that employee leaving base in order to visit various locations - such as the head office worker who requires to visit various branches - does not deprive the base from being the establishment at which the employee in question is employed.

[23] Whether a claimant and her chosen comparator are employed in the same establishment is ultimately a matter of evaluation of the particular facts and circumstances. As was observed in Barratt Developments (Bradford) Ltd v UCATT, it is perhaps easier to recognise in the particular case the presence or absence of a separate establishment than to define with precision the dividing line. The Employment Judge in the present case described the matter as involving a "multi factorial task". That may not be an inaccurate way of describing matters.

[24] In reaching the conclusion, on the evidence which he heard, that the comparators were not employed at the same establishment or establishments as the claimants, the Employment Judge appears to me to have considered all the indiciae suggested in the domestic case law. While it may be that the Employment Judge might have made fuller findings in fact in relation to those indiciae I have respectfully come to the view that he was entitled to take the view overall that the claimants were not employed in the same establishment as the comparators. For what it may be worth, it should also be noted that in Leverton v Clwyd County Council [1989] 1 AC 706, the claimant and her comparators were all employed by the local authority. The Court of Appeal agreed with the soundness of a concession to the industrial tribunal that the claimant - a nursery nurse who worked in an infant school - worked in a different establishment from the comparators, some of whom worked in the local authority's library and museums services department; that matter was not questioned or doubted in the House of Lords.

[25] Finally, on this branch of the case, I would record that I have the impression that the task of the Employment Judge in deciding the same or separate establishment issue may not have been assisted by parties' decision to select such a large number of claimants and comparators and thereafter seek a universal, "one size fits all" determination from the Employment Tribunal. Similarly, that approach may have led to the EAT judge substituting a universal finding, notwithstanding that at least some of the claimants were employed in a school, which, as I have already indicated, may readily be seen as a separate establishment, and also notwithstanding her recognition (paragraph 71) that a school "could be expected to have its own identity" and that its "daily operation could be expected to be directed by the head teacher". As I have already stated, I do not consider that the existence of some central power in the employer is inconsistent with there being a separate establishment and thus the existence of some retained central powers of "purpose, management and control" does not prevent a school from being a distinct entity, which has a high degree of permanency, with a degree of organisational and financial autonomy and other features of an "establishment". While, with hindsight, it may have been preferable in the proceedings before the Employment Tribunal to approach each claimant on an individual basis - or possibly with sub-groups of claimants - I respectfully do not consider, that, on a proper construction of the Act, the EAT judge was entitled to hold that the undertaking of the council constituted a single establishment; or to reverse the findings in fact of the Employment Judge. A universal answer to the effect that all claimants and comparators were employed in the same establishment plainly cannot be given if some, particularly those employed in a school, were employed in an establishment other than that of the comparators.

Observance of common terms and conditions

[26] Given that the claimants were not employed in the same establishment as the men, it is then necessary in terms of section 1(6) of the Act for the claimants to demonstrate their being in the "same employment" as the male comparators by reference to that part of section 1(6) which refers to the alternative of employment "at establishments in Great Britain which include that one [scilicet that of the claimant] and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes".

[27] As I understand it, the contention of the council which has been pursued in these proceedings is, in essence, that the claims fail because the claimants are employed on different terms and conditions from those applicable to the comparators, and, were a comparator to be employed in a claimant's establishment, his terms and conditions would be required to be adjusted to accord more closely with those of the claimant. As narrated earlier, at least historically, employees such as the claimants, holding APT & C posts were subject to Blue Book terms and conditions; the comparators, as "manual" employees were employed under the terms and conditions in the Green Book. Much disputation took place in the tribunals below as to whether the advent of the single status agreement - the Red Book - superseded any distinction between those terms and conditions and produced a single collective agreement, thereby constituting common terms and conditions observed at all the council's establishments. As respects that dispute, in essence the council contended that, after 1 July 1999, the Green and Blue Book conditions continued to have a discrete existence, and governed the respective employments in APT&C and Manual posts respectively, pending completion of the JES. Only on completion of that exercise and the production of a single salary scale could it be said that there was a single collective agreement producing common terms and conditions. In any event, the Red Book had to be construed as continuing within it distinct Green and Blue Book terms. Accordingly, it was contended, since, at the least, the claimants holding APT & C posts were (at the relevant time) subject to those terms and conditions of the Blue Book which were continued in the Red Book and the comparators holding manual posts were subject to those terms and conditions of the Green Book which were similarly continued, it followed that the claimants and the comparators were not employed on common terms and conditions. The position of the claimants, put very shortly, and perhaps at risk of over-simplification, was that the Red Book superseded the Blue Book and the Green Book. It was a comprehensive agreement and thus constituted a single collective agreement; hence the claimant and the comparators were employed on common terms and conditions, namely the whole terms and conditions contained in the Red Book.

[28] The Employment Judge considered first whether the Red Book had been incorporated into the relevant contracts of employment and concluded that it had been so incorporated. He firmly rejected evidence from the council's witness who sought to maintain the contrary. That rejection is not open to being re-visited in this appeal. The Employment Judge next concluded that what he described as "vestiges" of the Blue Book and the Green Book referring to pay and grading provisions were retained by incorporation in the Red Book, until such time as single status was achieved following the completion of the JES. The Employment Judge then concluded that after 1 July 1999 those vestigial provisions of the Green Book and Blue Book conditions were, however, to be derived from a single collective agreement, namely the Red Book. At paragraph 483 of his judgment he therefore held, on that basis, that the claimants and the comparators were employed at different establishments to which common terms and conditions of employment applied generally or for employees in both the claimant's class and the comparator's classes.

[29] However the Employment Judge properly went on to consider matters on the basis that, as the council contended, the Green Book and Blue Book terms and conditions had not been truly or wholly superseded by the Red Book. He took the view, on the House of Lords authority in Leverton v Clwyd County Council and British Coal Corporation v Smith [1996] ICR 515, that section 1(6) of the Act was satisfied if it could be said that, were the male comparator employed elsewhere to be employed at the female claimant's establishment, he would be so employed on the same terms as applied to his manual post. The Employment Judge concluded at paragraph 504:

"504. On that basis, I am satisfied that the hypothesis is sufficiently robust to allow me to conclude that if Manual (Green Book) employees (the comparators in this case) were to be employed to work at locations which are presently predominantly or exclusively Blue Book establishments (such as those to which the Claimants are assigned), the comparators would still be employed on Green Book terms and conditions".

The reference by the Employment Judge to the robustness of the hypothesis is, it appears, a reference back to his finding that the hypothesis of a gardener or other Green Book employee being assigned to a school, while unlikely, was not inconceivable and that it was "sufficiently realistic to be worthy of consideration". As I understand it, the discussion of the realistic nature of the hypothesis reflected a decision of the Employment Appeal Tribunal in North v Dumfries & Galloway Council, the soundness of which was, on further reflection, doubted by the EAT judge in the present case. In the event, this Court in its judgment of 7 January 2011 in North v Dumfries & Galloway Council accepted that the EAT had erred in finding that the wording of section 1(6) of the Act required a woman to show "a real possibility" of the chosen male comparative being employed at the woman's establishment in either the job which he carried out at the other establishment or in a broadly similar job.

[30] Without intending any disrespect to the extensive discussion of matters in the judgment delivered by the EAT judge it is, I think, sufficient for present purposes to say that, put very shortly, she was at one with the Employment Judge in considering that the Red Book constituted a single collective agreement and thus the terms and conditions for both the claimants and the comparators; and that, while questioning, or perhaps partially recanting on, the need for the realistic possibility which had been stipulated in North v Dumfries & Galloway Council, she took the view that the hypothesis simply required that the male comparators would be employed on the same terms and conditions were they to perform their same respective jobs in the female claimant's establishment.

[31] In the argument before us the battle lines were not drawn up in any significantly different manner from those in which they were drawn in the tribunals below, save that, in the course of his submissions, counsel for the appellant council sought to challenge the finding of the Employment Judge in paragraph 504 by referring to a witness statement by a Mr Allan to the effect that, were a manual worker to be employed at a school, his terms would have to be adapted to accommodate APT & C terms. The Employment Judge rejected Mr Allan's evidence (paragraph 539). No ground of appeal was framed respecting that rejection and, in any event, I think that the premise upon which Mr Allan proceeded may properly be judged as misconceived for the reasons which I shall endeavour to elaborate.

[32] I find it convenient first to approach matters on this branch of the case on the assumption that sufficient features of the Blue Book and the Green Book, differing as between them respectively, were incorporated in the Red Book to result in the claimants on the one hand and the comparators on the other hand, not being engaged on the same terms and conditions since they had different pay scales, holiday provisions, and - we were told of particular importance- different provisions respecting the availability of bonus payments. I thus acknowledge, for the present, the argument that if such Green Book terms and Blue Book terms are so incorporated, the fact that they are contained within the single document described as the Red Book does not of itself mean that the two classes of worker, the claimants and the comparators, have common terms and conditions of employment. The assumption upon which I proceed is thus, I think, akin to the second alternative basis upon which the Employment Judge proceeded (cf paragraph 485ff), namely that the claimant and the comparators were employed under separate collective agreements.

[33] The exercise for which the legislature provided in section 1(6) of the Act was considered by the House of Lords first in Leverton v Clwyd County Council. On my reading of that case a leading issue was whether there required to exist a set of common terms and conditions applicable to both the claimant and to her comparators; or whether the search was for a set of common terms and conditions applicable to the comparators and observed at all the relevant establishments of the employer in question. The majority in the Employment Appeal Tribunal and the Court of Appeal considered that the comparison which fell to be made was between the terms and conditions of the woman's employment and those of the employment of the male comparators; only if broad similarity were to be found between the two could the female claimant refer to a male comparator in a different establishment. That approach was rejected by Lord Bridge (with whom all the other members of the Judicial Committee agreed) in his speech (p.745D ff) where he said:

"I have no hesitation in preferring the minority to the majority view expressed in the courts below. It seems to me, first, that the language of the subsection is clear and unambiguous. It poses the question whether the terms and conditions of employment 'observed' at two or more establishments (at which the relevant woman and the relevant men are employed) are 'common', being terms and conditions of employment observed 'either generally or for employees of the relevant classes'. The concept of common terms and conditions of employment observed generally at different establishments necessarily contemplates terms and conditions applicable to a wide range of employees whose individual terms will vary greatly inter se. On the construction of the subsection adopted by the majority below the phrase 'observed either generally or for employees of the relevant classes' is given no content. Terms and conditions of employment governed by the same collective agreement seem to me to represent the paradigm, though not necessarily the only example, of the common terms and conditions of employment contemplated by the subsection.

But if, contrary to my view, there is any such ambiguity in the language of section 1(6) as to permit the question whether a woman and men employed by the same employer in different establishments are in the same employment to depend on a direct comparison establishing a 'broad similarity' between the woman's terms and conditions of employment and those of her claimed comparators, I should reject a construction of the subsection in this sense on the ground that it frustrates rather than serves the manifest purpose of the legislation. That purpose is to enable a woman to eliminate discriminatory differences between the terms of her contract and those of any male fellow employee doing like work, work rated as equivalent or work of equal value, whether he works in the same establishment as her or in another establishment where terms and conditions of employment common to both establishments are observed. With all respect to the majority view which prevailed below, it cannot, in my opinion, possibly have been the intention of Parliament to require a woman claiming equality with a man in another establishment to prove an undefined substratum of similarity between the particular terms of her contract and his as the basis of her entitlement to eliminate any discriminatory differences between those terms."

In the paragraph which follows that which I have just quoted, Lord Bridge went on to give what he described as a sensible and rational explanation for the limitation of equality claims as between men and women employed at different establishments to those at which common terms and conditions of employment were observed, namely that for perfectly good geographical or historical reasons, an employer might require to operate essentially different employment régimes at different establishments. And he instanced a general difference, for reasons relating to local economic conditions, in pay rates in the respective localities.

[34] In his speech in British Coal Corporation v Smith Lord Slynn observed (p.527E-F) that the critical question in Leverton was "between whose terms and conditions should the comparison be made". Earlier in his speech he recorded the outcome of that decision in terms reflecting the parties' agreement as to the import of the Leverton case. At page 526E-G Lord Slynn is reported thus:

"It is plain and it is agreed between the parties that the woman does not have to show that she shares common terms and conditions with her comparator, either in the sense that all the terms are the same, since necessarily his terms must be different in some respect if she is to show breach of the equality clause, or in regard to terms other than that said to constitute the discrimination.

It is accepted by the corporation that for the purposes of this appeal as between different establishments common terms and conditions do in any event apply to the two classes of claimants, canteen workers and cleaners. 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 claimant'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." (emphasis added)

As I understood him, counsel for the appellant council now accepted that the search for common terms and conditions was as between the male comparators and involved the hypothesis of employment of a male comparator at the female claimant's establishment. If I properly understood him so to accept, I consider that he was right to offer that acceptance.

[35] That being so, it appears to me, with respect, that the position of the council in these proceedings is misconceived. There was not, and I venture to say could not ever be, any suggestion that the appellants operated different employment régimes dependent upon the location of the particular establishment at which the employee worked. Whether an employee was subject to Blue Book conditions or to Green Book conditions, or such of those conditions as were continued in the Red Book, was entirely dependent upon the nature of the post and the duties to which he or she was appointed, irrespective of the location or establishment at which the employee worked, or was based. What has to be considered is whether if a manual worker, in casu a gardener, refuse collector, or grave digger, whether hypothetically likely or not, were to be located in the claimant's establishment for the performance of his current job he would continue to be employed on terms and conditions applicable to manual workers. It is thus, in my opinion, erroneous (perhaps particularly in an equal value claim) to consider whether, on the transfer of the male comparator hypothetically to the woman's establishment, adjustment might be made to his terms and conditions to dovetail more closely with those of the female claimant. To illustrate the matter, if the comparator were, say, a gardener working 37 hours per week with four weeks' holidays in a local authority park, it is not appropriate to consider whether, if hypothetically transferred to a school, practical considerations might suggest some alteration to fit in with the cycle of the school terms. The hypothesis is of a transfer there to perform his existing, non- trimestrial employment (for which it may be that there is the further hypothetical corollary of an assumed need at the school for such non-trimestrial employment). Plainly, if there were in fact a male groundsman employed at the school (a Green Book employee) with four weeks' annual leave, a female (Blue Book employee) at that school who worked in accordance with the cycle of the school terms could yet invoke him as a comparator since both are in the same establishment. As respects the preliminary admissibility of selecting him as a comparator, it would be irrelevant that he worked more days in the year than the claimant whose work pattern followed the cycle of school terms and holidays. That being so, there is in my view no good reason for looking at matters differently when applying the hypothesis of a transfer of a Green Book employee to the establishment of the Blue Book claimant.

[36] Accordingly, I consider that the tribunals below were correct to conclude that, esto the Green and Blue Books were not superseded by the Red Book, or that such green and blue distinctions as were continued in the Red Book were sufficient to deprive the Red Book of the status of a single collective agreement, the claimants did meet the test under section 1(6) of the Act. The basic finding of the Employment Judge at paragraph 504 was in my view sound, although his consideration of the robustness of the hypothesis was, I think, unnecessary in light of subsequent development in the law.

[37] In these circumstances, having adopted the premise favourable to the council on the issue of the supersession of the Green and Blue Books by the Red Book or the survival of their terms within the Red Book, I consider that the issue of whether common terms and conditions of employment were observed must be answered adversely to the council.

[38] It is thus unnecessary to embark on further consideration of questions relating to the detailed construction or interpretation of the provisions of the Red Book or the extent to which the former distinction between APT & C employees and manual employees survived in the interim period following the achievement of the JES exercise in October 2010. However, I would first re-iterate that the Employment Judge rejected the contention that the contracts of employment of the claimants and the comparators were not subject to the Red Book provision but were subject only to the Green Book or Blue Book conditions respectively. For reasons which he explains, he rejected the evidence of the witness tendered on behalf of the council who sought to maintain the latter position to apply. As already indicated, his rejection of that evidence is not a matter which is open for review in this appeal. Secondly, insofar as one may find within the Red Book separate provision for different classes of employee which represent some provisions of the Green Books and the Blue Book continued ad interim in the Red Book, I have come to the view that that feature does not deprive the Red Book of the status of a single collective agreement. A collective agreement may cover a variety of category of employees, with different provision being made for each category. It matters not, for the purposes of section 1(6) of the Act, that the collective agreement thus contains different provisions for the respective category. What is important is that the collective agreement is observed at the respective establishments in question. It is not disputed that the Red Book is applied by the council universally to all employees to whom it relates. Since it thus applies to all establishments, it equiparates with the position which would apply to a claimant and a comparator who are employed in the same establishment.

EU law issues

[39] Given the view which I have thus formed of the proper construction and application of the domestic provisions, particularly section 1(6) of the Act, which results in the claimants succeeding on the preliminary issue of the admissibility of the selected comparators, it is unnecessary to consider in this appeal whether the ordinary interpretation of the terms of the domestic legislation requires to be especially moulded to accord with the EU legislative provisions and the jurisprudence of the Court of Justice or whether Article 157 TFEU gives some independent cause of action, outwith the provisions of the domestic legislation, in the case of claims respecting work said to be of equal value.

[40] In the debate before us it was not in dispute that the domestic legislation in this field should, so far as possible, be interpreted in a manner consistent with EU law in regard to equal pay. In that respect, I would add that, to my mind, it is only on first reaching an overall construction of the apparent effect of the domestic legislation that one would then have resort to that wider, interpretative consideration. That wider consideration should not be deployed ab ante in construing in relative isolation individual phrases in the domestic legislative text. If, as I think, the provisions of section 1(6) of the Act as construed by the House of Lords have, in light of that interpretation, only the function of preventing reference to the pay and terms of employment of a worker who is, for good and substantial reasons, not a proper comparator, it appears to me that, largely for the reasons discussed and exemplified by Balcombe LJ, in Leverton v Clwyd County Council at p723, it is prima facie difficult to see that provisions having only that effect offend against EU law. It would, I think, be accepted by EU law that in "equal value" claims a proper comparison has to be made and that some parameters fall to be placed on the nature of a proper comparative exercise.

[41] On the more radical and difficult question whether Article 157 TFEU provides in an "equal value" claim some independent cause of action which sidesteps the provisions of domestic legislation respecting such claims, I have to say that I entertain some doubts and reservations. The argument for the existence of such a direct right of action, as I understand it, largely draws upon the decision of the Court of Justice in case C-43/75 Defrenne v SABENA [1976] ECR 455. It should, I think, be borne in mind that in that case the Court of Justice was concerned with what can be described as direct discrimination on grounds of sex in that the airline which employed Mme Defrenne had different rates of pay for cabin staff which were expressly dependent upon whether the employee was male or female
[2]. The Court of Justice, however, recognised that, while a judicial body might take direct note of such obvious and direct discrimination, there were other forms of indirect discrimination for which particular legislative or regulatory measures might be required at both national and European level.

[42] In case C-320/00 A G Lawrence & Others v Regent Office Care Ltd & Others

[2002] ECR 1-7325 the Advocate General (Geelhoed) observed at paragraph 53 of his

opinion that Article 141 EC (the successor of Article 119, considered in Defrenne, and the immediate predecessor of Article 157 TFEU) "operates against all forms of discrimination which can be detected by the courts on the basis of a purely legal analysis". In the case of a claim based, not on "like work", or "work rated as being of equal value", but instead "work of equal value", it is, I think, difficult for a court or tribunal to say that discrimination on grounds of sex in the field of equal pay can be detected on the basis of a purely legal analysis. Procedures and mechanisms are required for establishing the "value" of the work performed by the persons concerned. The domestic legislation in Great Britain provides for such procedures and mechanisms. In that connection the observations made by Balcombe LJ in his opinion in Leverton v Clwyd County Council at page 724B - D may not be without some force. In refraining from the expression of a concluded view on this issue, I do not intend any disrespect to the diligence with which counsel - including particularly counsel for the Commission in her written submission - have researched matters. That diligence is to be commended and is, for my part, much appreciated as was the quality of the oral debate on this matter before us.

Motion

[43] In light of the views which I have expressed in this opinion, my motion to your Lordships is that this appeal by the council against the decision of the Employment Appeal Tribunal be refused; and that the matter be remitted to the Employment Appeal Tribunal to proceed as accords, which will no doubt involve a further remit to the Employment Tribunal to address the merits of the claims by initiating the particular procedures for evaluation of equality of work which are laid down in the domestic legislation.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Paton Lord Hardie	[2011] CSIH 70 XA94/10 OPINION OF LADY PATON in the Appeal under section 37(1) of the Employment Tribunals Act by CITY OF EDINBURGH COUNCIL Respondent and Appellants; against CHRISTINA WILKINSON and OTHERS Claimants and Respondents; and ALISON McLEOD and OTHERS Claimants and Respondents; _______

Respondent and Appellants: Truscott, Q.C., Marsh; Head of Legal Services, City of Edinburgh Council

First Group of Claimants and Respondents (Christina Wilkinson and others): J.J. Mitchell, Q.C.; Balfour + Manson LLP

Second Group of Claimants and Respondents (Alison McLeod and others): Napier, Q.C.; Thompsons

15 November 2011

Establishment

[44] I agree with Lord Eassie on this matter, and have nothing to add.

Same terms and conditions

[45] As noted by Lord Eassie, the Employment Tribunal dismissed much of Mr Allan's evidence, for the reasons given at paragraph 539 of their decision. The Employment Tribunal also observed, in paragraph 502, that it was -

" ... not inconceivable that staffing arrangements in schools might change in the future and that, for example, an employee of the nature of maintenance person or a gardener might be assigned to a particular location. Or what if, in the future, it was to be thought to be in the interests of the health of school children that food should be prepared on the premises in school kitchens (which arrangement used to be commonplace in state schools in this country) rather than being prepared at a central location and transported in? In such a situation, Manual (Green Book) employees might well be assigned to work in schools. That may be unlikely, but it is not inconceivable. Thus I am satisfied that the hypothesis is one which is at least sufficiently realistic to be worthy of consideration."

[46] As a result of their review of the evidence, the Employment Tribunal concluded in paragraph 504 that, as a matter of fact -

" ... if Manual (Green Book) employees (the comparators in this case) were to be employed to work at locations which are presently predominately or exclusively Blue Book establishments (such as those to which the Claimants are assigned), the comparators would still be employed on Green Book terms and conditions."

[47] This is not therefore a case where the Employment Tribunal did not refer to or analyse the evidence relating to the terms and conditions of work for the hypothetical transposed male worker, or where they failed to resolve the issues arising from the evidence: contrast with the situation in North v Dumfries and Galloway Council 7 January 2011, [2011] CSIH 2, paragraphs [37]-[38].

[48] On the basis of the specific consideration and resolution by the Employment Tribunal of the evidence, and the conclusion which the tribunal reached, it respectfully seems to me that this case falls to be distinguished from North, supra. In the present case, as the Employment Tribunal mentioned, the relevant evidence and resolved evidential issues relating to the same terms and conditions, the Council would in my view require to demonstrate an error of law in the Employment Tribunal's approach to the evidence and to the finding-in-fact in paragraph 504 (quoted above): cf dicta of Lord President Emslie at page 198 of Melon v Hector Powe Ltd 1980 SC 188:

"... The law is clear that where it cannot be shown that the tribunal of original jurisdiction has ... proceeded upon a misapprehension or misconstruction of the evidence ... then its decision is not open to successful attack."

[49] No Ground of Appeal was advanced challenging the finding-in-fact in paragraph 504. For that reason, I am prepared to agree with the conclusion reached by Lord Eassie, namely that the claimants meet the test under section 1(6) of the Act. I do not however concur with all the observations made in paragraph [35] of Lord Eassie's judgment in the present case. In my view, much will depend upon the evidence in any case.

Other grounds of appeal

[50] As the question of fact has been decided (namely that Green Book terms and conditions would continue to apply in a Blue Book context: see paragraph [46] above) it follows that it is unnecessary to give views on Grounds 3 to 5.

Conclusion

[51] I agree that the appeal should be refused, and the matter remitted to the Employment Appeal Tribunal to proceed as accords. The question of expenses should be reserved to enable parties to address us on that matter.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Paton Lord Hardie	[2011] CSIH 70 XA94/10 OPINION OF LORD HARDIE in the Appeal under section 37(1) of the Employment Tribunals Act by CITY OF EDINBURGH COUNCIL Respondent and Appellants; against CHRISTINA WILKINSON and OTHERS Claimants and Respondents; and ALISON McLEOD and OTHERS Claimants and Respondents;

Respondent and Appellants: Truscott, Q.C., Marsh; Head of Legal Services, City of Edinburgh Council

First Group of Claimants and Respondents (Christina Wilkinson and others): J.J. Mitchell, Q.C.; Balfour + Manson LLP

Second Group of Claimants and Respondents (Alison McLeod and others): Napier, Q.C.; Thompsons

15 November 2011

Establishment

[52] I also agree with your Lordship in the chair on this matter and have nothing to add.

Same terms and conditions

[53] Lord Bridge of Harwich in Leverton at page 746 considered the question with which we are concerned in the present case and a passage from his speech (p745Dff) is quoted by your Lordship at paragraph [33]. Having explained that there was "a sensible and rational explanation for the limitation of equality claims as between men and women employed at different establishments to establishments at which common terms and conditions of employment are observed" based upon historical or geographical reasons, citing different rates of pay for the same work in London and Newcastle as one example, Lord Bridge further stated:

"These examples are not, of course, intended to be exhaustive. So long as industrial tribunals direct themselves correctly in law to make the appropriate broad comparison, it will always be a question of fact for them, in any particular case, to decide whether, as between two different establishments, 'common terms and conditions of employment' are observed either generally or for employees of the relevant classes" (746G-H).

Lord Bridge's comments in that respect envisaged that common terms and conditions would be observed for employees in each particular class, although they would differ as between classes, otherwise all classes would be subject to the same collective agreement and it would be unnecessary to contemplate the hypothetical transfer of the comparator to the claimant's establishment. As Lord Slynn of Hadley explained in British Coal Corporation, in the passage quoted by your Lordship (paragraph [34]), the terms must be different as between different classes before the claimant could succeed in a claim based upon breach of the equality clause.

[54] In determining the issue whether a comparator employed at a different establishment would be transferred to the claimant's establishment on broadly similar terms and conditions of employment as he currently enjoys, it seems to me that the starting point must be the terms and conditions of the collective bargain to which he is subject. However, it cannot be assumed in all cases that he would simply be transferred without any material change to these terms and conditions. I derive support for that view from the observations of Lord Bridge, quoted by me in the preceding paragraph. Moreover, in British Coal Corporation Lord Slynn stated:

"...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 to show that the gardeners at other establishments were or would be employed on broadly similar terms. It was necessary but it was also sufficient"(527C-D).

How the applicant satisfies the tribunal of fact that the comparator would be transferred on broadly similar terms, will depend upon the particular circumstances of each case. As I have already observed, the tribunal will usually have to consider the terms of the collective agreement to ascertain whether there are material differences in terms between employees of the same class and the reasons for such differences and whether such differences inform the decision of the tribunal as to the likelihood of the transfer of the comparator on broadly similar terms. I regret that I am unable to accept your Lordship's observation that it is inappropriate for the tribunal to consider practical considerations that might result in an alteration in the terms and conditions of employment. While it is correct that the tribunal should not determine the issue on the basis of minor variations, the question for its determination is whether the comparator would be transferred on broadly similar terms and conditions which have the effect of respecting his "core" terms. As Lord Slynn observed in British Coal Corporation (p528F):

"The tribunal was not, therefore, looking for identical terms and conditions other than de minimis differences. It was as I read it directing itself according to the test which I have indicated that I consider to be the right one namely that a broad comparison should be made as Lord Bridge of Harwich indicated. If they had directed themselves only to accept de minimis differences they would have adopted a test more favourable to the corporation than they were required to do."

Lord Slynn does not exclude the tribunal from taking into account minor differences; the tribunal is precluded from determining the issue by accepting only de minimis differences. In making the required broad comparison, the tribunal is entitled to consider all of the evidence before it, as long as it applies the correct test in answering the question for its determination.

[50] In this case the tribunal has answered the factual question in favour of the respondents. In the absence of a ground of appeal challenging that finding in fact and for the reasons given by your Ladyship this is determinative of the issue of transfer of the comparator to the claimant's establishment on broadly similar terms and conditions of employment. For that reason I agree with your Lordship in the chair that the claimants meet the test under section 1(6). In these circumstances it is unnecessary to express my views on Grounds 3 to 5.

Decision

In light of the views that I have expressed above, I agree that the motion proposed by your Lordship in the chair should be granted.