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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> TR McPherson (Microfilm Services ) Ltd v. Charles [2004] UKEAT 0117_03_2805 (28 May 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0117_03_2805.html Cite as: [2004] UKEAT 117_3_2805, [2004] UKEAT 0117_03_2805

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APPEARANCES

 

 

For the Appellants	Mr A Hardman, Advocate Instructed by- Messrs Kidstons & Co Solicitors 1 Royal Bank Place Buchanan Street GLASGOW G1 3AA
For the Respondent	Mr I Clark, Solicitor Of- Ross Harper 58 West Regent Street GLASGOW G2 2QZ

SUMMARY
EQUAL PAY

Equal pay – comparison with comparator. No error fact


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer from the decision of the Employment Tribunal sitting in Glasgow, sustaining the application by the employee that she was entitled to equal pay with a comparator, and making a monetary award.
2. The matter is in very narrow issue.
3. The findings of the Tribunal that are relevant are as follows:-

"The factors upon which the respondents rely are not factors which are relevant to Section 1(3). They are factors which may be relevant to Section 1(2)(a). "Experience" is a personal quality. "Length of service" too is simply an aspect of an employee's profile in any particular employment. Neither of these factors is "significant and relevant" in the context of a section 1(3) defence (see Lord Keith in Rainey v Greater Glasgow Health Board 1987 ICR page 129). What is intended, in our view, as a Section 1(3) factor, is an extrinsic factor, as for example, some economic or administrative consideration applying to the particular business activity of the employer. Such a factor is the one which we have identified in the hypothetical example which we have given.

That is not to say that experience and length of service will never be relevant. These factors may be relevant to consideration of Section 1(2)(a). Experience and length of service for example may explain why a comparator undertakes more responsibility in his work than an applicant. The case of Eaton is an example. But, as it seems to us, if these factors are to be relied upon by the employer, it requires to be demonstrated that there is a connection between the work actually done and the experience and length of service required to do it. No such connection was identified in this case under reference to our consideration of Section 1(2)(a).

It is for these reasons therefore that we hold that the applicant is entitled to succeed in her equal pay case.

4. Mr Hardman, appearing for the appellants, submitted that the Tribunal had misunderstood what Lord Keith had said in Rainey v Greater Glasgow Health Board [1987] ICR 129, in holding, apparently, that experience and length of service were nothing to do with an issue with regard to equal pay.
5. To that extent, it does appear to us, that there is substance in that submission. However, as Mr Clark, appearing for the respondent, pointed out, properly understood, if, unhappily expressed, the Tribunal had disconnected the question of length of service and experience with the differentiation in the pay of the respondent and her comparator and the latter was admitted to be the case.
6. With little hesitation, we are of the view, that, although the Tribunal have not properly stated the position, in law, they have addressed the position in fact and it is their finding that the difference in pay was not related to experience and length of service. That was a finding they were entitled to make.
7. On this simple ground, accordingly, we consider this appeal requires to be dismissed.