Appeal No. EAT/568/89

	ZZZZZZZZZZ APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 24th March 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR R H PHIPPS

	MR G H WRIGHT MBE

DONCASTER EDUCATION AUTHORITY	APPELLANTS

MRS J GILL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J WINTELER
(Of Counsel)
The Solicitor
Doncaster Borough Council
PO Box 71
Copley House
Waterdale
Doncaster
DN1 3EQ

For the Respondent	MS V GAY
(Of Counsel)
Ms Pauline Matthews
Principal Legal Officer
Equal Opportunities Commission
Overseas House
Quay Street
Manchester
M3 3HN

	MR JUSTICE KNOX:  This is an Appeal by the Doncaster Education Authority from a unanimous Decision of the Sheffield Industrial Tribunal which sat on the 20th July and the 16th August 1989.

	The Decision was sent to the parties on the 26th September of that year, and so far as this Appeal is concerned the relevant part of the Decision was that the claim of the Applicant, Mrs Gill of "like work" in relation to one of the three comparators that she chose, a Mr Draper, was upheld.  There is no cross-appeal and, there is no appeal against the Decision that the claim of "like work" in relation to other comparators, Mr Allen and Mr Brookfield were dismissed.

	That claim "to be employed on like work" arises under Section 1(2)(a) of the Equal Pay Act 1970, which provides:
"An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the `woman's) contract'), and has the effect that -

(a) where the woman is employed on like work with a man in the same employment -"

then there are the consequences which need not be spelt out but which are familiar.  That is elaborated by Section 1(4) which defines the circumstances in which a woman is to be regarded to be employed on "like work".  That sub-section reads as follows:
"A woman is to be regarded as employed on like work with men if, but only if her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment;  and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences."

	Mrs Gill was employed as head of Business Studies Department at Mexborough School.  The comparator with whom we are concerned, Mr Draper, was, or more accurately had been, because he had ceased so to be employed by the time of the hearing before the Industrial Tribunal, head of Business Studies at another school some few miles away, Adwick School, but still within the same educational authority.  The other two comparators were also at Mexborough School but they were distinguished because their teaching activities covered the teaching of `A' levels, and that is not a fact with which we are here concerned.

	The issue as it has emerged in the course of argument, and it is fairly clearly identified in the Notice of Appeal, is whether the Industrial Tribunal was right in treating as severable from his activities as head of the Business Studies Department the activities that Mr Draper performed as House Master or Assistant House Master, it does not much matter which, and as a master concerned with vocational training.  Those were activities that he undoubtedly performed and they were activities which the Industrial Tribunal found on the evidence it was able to put on one side.

	So far as similarities were concerned the Industrial Tribunal found that there was "like work" as between Mrs Gill's activities as head of Business Studies Department at Mexborough School and Mr Draper's activities as head of Department of Business Studies at Adwick School.

	The specific findings regarding Mr Draper's activities are stated in paragraph 8 of the Industrial Tribunal's Decision where they said this:
"The other comparator is Mr Draper who was head of the Business Department at Mr Sheppard's school at Adwick.  Again Mr Sheppard was of considerable assistance in relation to Mr Draper."

I pause for a moment to say that Mr Sheppard was the Head Master of Adwick.
"There is no `A' level at the present time and Mr Draper has never done `A' level and could not do it without further training and indeed if they did `A' level Business Studies it would be in another department.  Mr Draper has some part time staff and one unqualified teacher and Mr Sheppard says an unqualified teacher needs more supervision.  He said that Mr Draper had a number of other duties and he gets the higher `D' allowance.  It appears he has responsibilities as a housemaster and for vocational work.  In relation to those other things outside his business study work Mr Sheppard said this:

`That is what takes him from `B' to `D'.

It appears that since Mr Draper's retirement his successor is on an `A' allowance although Mr Sheppard sees that rising in the future to a `B' allowance.  The reason that it is only an `A' is that they wish to assess both what to do with the department in the light of the new national curriculum and whether the lady works herself fully into the post.  Mr Sheppard said this in answer to a question to the tribunal:

`Had I felt she was ready to succeed Mr Draper she would have been on `B'."

They then deal with the question of comparability, or the question of whether the work was "like" in the Business Studies aspect of matters and the difference that was identified as being the only one of any significance was some added responsibilities on Mr Draper in relation to the supervising of mechanical and electrical equipment nowadays used in teaching office skills and ensuring that it was kept out of harm's way when the premises were used for further education.  The part of the school that was used for Business Studies during school hours, was also used for further education, presumably later in the day, and obviously there were problems protecting sensitive equipment.

	That was looked at carefully by the Industrial Tribunal later on in their Decision and they found specifically that that difference was of a very minor nature and not of practical importance in relation to terms and conditions of employment and we see no possible basis for criticising that aspect of what ultimately, was a clear factual Decision.

	Returning to the point in issue in the Appeal, namely the severability of the housemaster and vocational work, we find the heart of the Industrial Tribunal's Decision in paragraph 10 where they record the arguments on behalf of the education authority that because Mr Draper was on a `D' allowance it would be artificial to look at the `B' element of his work.  The letters denote in ascending scale, allowances given over and above the basic professional pay. Under the scheme which replaced the Burnham Scale `A' is the lowest step in the allowance pyramid `B' is one higher, and `D' obviously is two higher than `B'.  The Industrial Tribunal dealt with that argument as to the artificiality of separating out Mr Draper's work which carried a `B' allowance, that is to say his headship of the Business Studies Department, in this way:
"Understanding the forcefulness of those submissions the tribunal does nonetheless have as the starting point the evidence of Mr Sheppard.  On the basis of his evidence we have no difficulty at all in identifying the business studies element of Mr Draper's work as being within a grade `B' allowance.  That seems to us to have clearly been the judgement of his headmaster and was the starting point which gave him the leap to grade `D' for the other matters and without which it is difficult to see how he would have arrived at grade `D'.  If the evidence had been that Mr Sheppard had taken an overall view and the whole thing was lumped together at grade `D' and you could not disentangle it then of course Mr Scowcroft's submissions would have had a great deal of force.  But that was not the evidence and it is the evidence upon which we must base our decision."

The law on the subject is principally to be found in the Decision of this Tribunal in Maidment & Another v. Cooper & Co (Birmingham) Ltd [1978] ICR 1094, where there were two sets of comparisons, but it is only the first one that matters, which concerned Mrs Maidment. 

	She was employed as a shop clerk and packer and had as a comparator a male storeman and packer.  They both spent most of their time as packers, Mrs Maidment spent 10 per cent of her time as a clerk and the man comparator spent slightly more than 10 per cent of his time as a storeman for which he was paid an extra £2 a week above his grade.

	The Industrial Tribunal found that although their work was of a broadly similar nature, they were not employed on "like work" as there were differences of practical importance in relation to terms and conditions of employment, and that Decision was upheld by the Employment Appeal Tribunal.  The point was specifically raised as to the severability of the male comparator's activities as a storeman, as opposed to a packer and it was in that context that we find a principle stated by Mr Justice Phillips in that Decision at p.1098 where he said this:
"At the end of the day, therefore, we are satisfied that in applying section 1 (4), whereas it is usually right to disregard the time at which the work is done, it is not permissible in ordinary circumstances to disregard any part of the work actually done in practice.  We say `in ordinary circumstances,' for it is possible to believe that there will be unusual cases where it might be right to proceed otherwise.  Those cases will have to be dealt with when they arise;  but what we have in mind is the kind of example cited in the argument where upon analysis it can be seen that part of the work, although subsumed under the general description of the tasks of the employee, is in effect a separate and distinct job.  For example, when comparing two cleaners, one male and one female, both of whom do identical work during the week, it might be right to ignore work of a quite different kind done by the man coming in, say on Saturdays, in order to cut the grass.  Each such case must depend on precise facts."

and then he goes off to deal with the facts of that particular case.  

	In our judgment that states the law accurately.  The question resolves itself into one whether the Industrial Tribunal adopted the right principle in reaching the conclusion that I have already described.  It is curious that although they quote a long list of cases, cited to them regarding questions arising under Section 1 of the Equal Pay Act 1970, that list does not in fact include the Maidment Decision.  However, we are satisfied that their approach is in line with what was said by Mr Justice Phillips and that their Decision is a factual Decision, with which it would be wrong for us to interfere, and based upon the proper principle.  Was there, a separate and distinct job, is the question that they have, effectively in our view, addressed.  They have identified the housemaster and vocational work as being separate.  For there to be severability, it is in our view, essential that there should be discernible separate activities and that seems to us to be satisfied in the present case.  Whether it is also essential in all cases that there should be separate remuneration proved for the severable activities need not be decided.  It is no doubt only an unusual case that will raise such question of severability successfully on part of the employee, and it will no doubt also only be in a small minority of such exceptional cases that it would not be possible to sever both the activities and the remuneration.  It is not necessary for us to say that that must universally be so because in this particular case we are satisfied that the Industrial Tribunal had evidence upon which it could and did find that Mr Draper's activities as head of Business Studies carried a `B' allowance and that his separate activities as Housemaster or Assistant Housemaster and Vocational Studies Teacher carried the difference between the `B' and the `D' allowances.  

	In those circumstances, this appeal seems to us to raise no distinct point of law and indeed no error of any sort is, in our view, discernible.  It is not our function of course to express views on the facts, but on the law we see no error and this Appeal will be dismissed.