Appeal No.UKEAT/0321/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2004

Before
THE HONOURABLE MR JUSTICE MITTING
MISS G MILLS MBE`
MR P A L PARKER CBE

(1) REDCAR AND CLEVELAND BOROUGH COUNCIL 
(2) JARVIS PLC	APPELLANTS

(1) MS P DEGNAN 
(2) MRS E CARTER 
(3) MRS B FORSTER
(4) MRS L JOHNSON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J CAVANAGH QC
(One of Her Majesty's Counsel)
Instructed by:
Messrs Short Richardson & Forth
Solicitors
4 Mosley Street
Newcastle upon Tyne 
NE1 1DE	
For the Respondents	MR S CROSS
Solicitor
Messrs DLA
Solicitors
Princes Exchange
Princes Square
Leeds LS1 4BY	

SUMMARY

A fixed bonus and attendance allowance payable for performance of a contractual duties during normal working hours are payable under a distinct part or term of a contract, together with the hourly rate, and not separate parts or terms. Correspondingly, for the purposes of an equal pay comparison, all three are to be aggregated, by direction by the number of hours normally worked, an hourly rate calculated.  It is with the hourly rate that the comparison is to be made.

THE HONOURABLE MR JUSTICE MITTING

1	This is an appeal from the Reserved Decision of an Employment Tribunal sitting at Newcastle upon Tyne under sample Equal Pay Act cases, sent to the parties on 13 February 2004.  

2	The Tribunal had in essence three questions to answer: first, whether or not each of four female Applicants were entitled, by way of comparison with male employees of the Council, to an equality clause that entitled them both to a fixed bonus and to an attendance allowance, as enjoyed by some of the male comparators, or only to one or other of those two elements of pay, or to some combination of them.  Secondly, and in relation to the attendance allowance only, whether or not that payment was to be pro-rated by the day or by the hour, and thirdly, over what period, or alternatively at what rate, should interest on any arrears of pay be awarded.  

3	Each of the four female Applicants was employed as either a cleaner, or supervisory cleaner, or supervisory assistant or home help; the three Applicants who were employed as cleaners or supervisory cleaners, or as supervisory assistants were employed in schools and the home help in the Social Services Department of the Council.  Each Applicant was paid, and was paid only, an hourly rate; each Applicant worked part-time.  

4	Most of the facts in the case were agreed.  It was an agreed fact that each Applicant was employed in work which had been rated as equivalent with that of another group of employees, the great majority of whom were men.  Three categories of male comparator were identified: first gardeners, who received the same basic hourly rate as the Applicants, but in addition received a fixed bonus of 40%; secondly refuse workers and drivers, who also received the same hourly rate, but in addition received a 36% fixed bonus, and in addition, an attendance allowance of between £33.81 and £34.88 per week, dependent on grade.  The third category was road workers, who received the same hourly rate as the women, but were additionally entitled to a fixed bonus of 33% and an attendance allowance of between £13.91 and £14.61 per week, again dependent on grade.

5	The Tribunal analysed both the bonus paid to the male comparators and the attendance allowance.  Again there was little dispute, if any, about the basic facts.  The Tribunal concluded in a nutshell that the bonus payments were fixed and were, in effect, part of the standard rate of pay for basic hours so that there was no distinction to be drawn between the hourly rate and the fixed bonus added to it.  Both sides accept that in reaching that conclusion, the Tribunal was correct, although Mr Cross did at one point in his submissions suggest that the label which had been attached to the bonus element might, arguably, make it a separate term of the contract, so that it should not be lumped together with the hourly rate.  We do not understand him to stand by that submission in the end.  

6	As far as the attendance allowance is concerned, the Tribunal had undisputed evidence from Mrs Stone, a witness that it found to be truthful.  She explained that the attendance allowance had been introduced at some time in the distant past as a flat rate, at £20 per week for refuse collectors and at £10 per week for street sweepers.  That flat rate had been increased annually in line with annual percentage increases in the hourly rates.  

7	The Tribunal, in paragraph 10 of its Decision, went on to make the following further findings of fact:
“We thus accepted that attendance allowances were paid on a weekly basis, and that in order to qualify, the worker had to attend work but not necessarily remain at work throughout his normal shift times or for any particular number of hours.  If he failed to attend, for example, through notified sickness he would lose his attendance allowance for that day namely 1/5 of the weekly allowances paid for the 5 day week, or for however many days he was absent for that reason, based on the same calculation.  If, however, there was unauthorised absence for any one day in the week, the attendance allowance was lost for the whole week.  Attendance allowance was also payable during holidays as if the applicant had properly attended work.”
The Tribunal went on to remind itself about the proper legal test to apply to the questions which it had to answer, and in particular to remind itself and in detail of the speeches in the House of Lords in Hayward -v- Cammell Laird Shipbuilders Ltd [1988] ICR 464, to which we will return.  

8	The Tribunal’s conclusion in relation to the attendance allowance was set out in paragraph 16 of its Decision.  In that paragraph it also set out its conclusions in relation to the bonus, but it is not necessary for present purposes to set them out verbatim.  The relevant parts of paragraph 16 read:
“Applying the “same subject matter” test we decided that the terms relating to the basic pay and to the bonus payments in the relevant comparators’ contracts related to the same subject matter, but not the terms of the attendance allowance.  Our reasons for that conclusion were as follows:
….
(v) The basis of calculation of the attendance allowance was different.  The basic pay and the bonus are based on the proposition that the comparator works throughout the shift and until the end of the shift.  Both are calculated on the number of hours work attended.  The attendance allowance is different.  It only requires the worker to turn up for work, but not to attend throughout the shift.  It was thus not calculated on an hourly rate.  If the comparator failed to turn up, but gave an explanation in accordance with the respondent’s rules, e.g, in time and in accordance with the sickness rules, he would lose his attendance allowance but only for that day, or for as long as he remained on the sick.  If his absence was, however, unauthorised, he would lose his attendance allowance for the whole of the week.  The fact that the comparators’ holiday pay, for 4 or more weeks of the year, incorporated an attendance allowance element on the fiction that the comparator attended work during his holidays was not sufficient to displace the contention that the attendance allowance was not based upon the comparators’ hourly rate of pay.  It was based entirely upon the proposition that the comparator attended work daily but not throughout his shift.  This conclusion is also relevant to the pro-rata issue.”

9	The reasoning of the Employment Tribunal led it to the following conclusion: that each of the women were entitled to compare themselves with the relevant male worker most advantageous to them, for the purpose of the bonus element of his pay, and in addition to the relevant comparator for the purpose of the attendance allowance element of his pay.  Thus, for example, one of the Applicants, Mrs Johnson, was held entitled to the gardeners’ term as to bonus, that is to say to a 40% uplift, plus the refuse workers’ or refuse drivers’ attendance allowance, that is to say an attendance allowance at the rate of £33.81 per week.  The upshot was that in the case of Mrs Johnson, she would receive, by way of arrears of remuneration, more than would any of the male comparators chosen by the Applicants.  

10	Each of these applications was brought under section 1(1) and 1(2)(b) of the Equal Pay Act 1970 which provides:
“1(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) and 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 -
…
(b) where the woman is employed on work rated as equivalent with that of a man in the same employment -
(i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work 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 and determined by the rating of the work, the woman’s contract shall be treated as including such a term.”

11	The terms of section 1 of the 1970 Act were authoritatively considered by the House of Lords in Hayward -v- Cammell Laird Shipbuilders Ltd [1988] ICR 464.  Although that claim was brought under the equal value provisions of section 1, the reasoning is applicable to equally rated claims under the same section.  

12	It is, however, necessary and before turning to the speeches of Lord Mackay and Lord Goff, to draw attention to the precise terms that were in issue and under comparison by the House in that case.  They are to be found in the report of the decision of the Court of Appeal in 1987 ICR 682 at 689 E - 690 A in the judgment of Nicholls LJ.  He first of all set out the different rates of basic and overtime pay to which men and women were entitled, and then at G said the following:
“On the other side of the coin, although the hours of work were nominally the same, the applicant’s hours include a paid meal break of 30 minutes each day.  The employer values this, and the benefit of her free meals at £18.12 per week.  Further, but as a very small item, the applicant has an additional two days’ paid holiday each year (worth 71p per week).  Finally, the applicant enjoys better sickness benefits, to an extent which the employers values as £16.95 per week.  Using these figures, the items in respect of which the applicant is treated more favourably than the men comparables show an aggregate weekly advantage of £35.78 to the applicant.”

It is clear from the short passage that what was being considered and sought by the employers to be compared, were terms extending well beyond monetary pay.  

13	The House of Lords unanimously decided that it would be no defence for an employer to an equal pay claim to demonstrate that valuing the totality of the benefits, contractual and otherwise, which the employee would enjoy, would produce the result that terms for monetary pay, viewed alone, did not  discriminate against the woman.  Lord Mackay, at page 470F - 471 E analysed the competing argument thus:

“I deal first with the issue between the parties arising on the United Kingdom legislation to which I have referred. The issue is whether in terms of the Equal Pay Act 1970, as amended, the woman who can point to a term of her contract which is less favourable than a term of a similar kind in the man's contract is entitled to have that term made not less favourable irrespective of, whether she is as favourably treated as the man when the whole of her contract and the whole of his contract are considered, as the appellant submits, or whether, although she shows that a particular term of her contract is less favourable to her than a term of a similar kind in the man's contract, her claim can nevertheless be defeated if it is shown that the terms of her contract considered as a whole are not less favourable to her than the terms of the man's contract considered as a whole, as the respondents submit. 
No authority dealing with this question was referred to in the argument before your Lordships. There is no definition of the word "term" in the legislation. In that situation I am of opinion that the natural meaning of the word "term" in this context is a distinct provision or part of the contract which has sufficient content to make it possible to compare it from the point of view of the benefits it confers with similar provision or part in another contract.  For example, Miss Hayward was employed on her accepting terms set out in a letter to her from the respondents which includes the following:
“We can offer you a position on our staff as a cook at a salary of £5,165 per annum.  The base rate on which overtime is based is £4,741 …..”
There is a provision in the letter setting out the normal hours of work, providing that the overtime payment shall be plain time plus a third (two-thirds on Saturday and Sunday).
The corresponding provision  with regard to basic pay in the men’s contract is less specific and refers to a national agreement from which the rate of wages to be paid weekly in arrears is to be determined.  Overtime payments are to be determined also in accordance with the national agreement.  
It appears to me that it would be natural to compare the appellant’s basic salary as set out in her contract with the basic salary determined under the men’s contracts.  I think it would be natural to treat the provision relating to basic pay as a term in each of the contracts.  
However, one has to take account of the hours to be worked in order to earn this money and I think this consideration points to the importance of the provision in question being one which is capable of being compared from the point of view of the benefit it confers with a corresponding provision in another contract to see whether or not it is more beneficial than that provision.  Accordingly, I am of opinion that the natural application of the word “term” to this contract is that it applies for example, to the basic pay, and that the appropriate comparison is with the hourly rate of basic pay.”

14	Lord Goff set out the rival contentions of the parties and summarised them at page 

477 B - G.  

“To achieve that result, it would be necessary , in sub- paragraph (ii)” 
[that is to say section 1(2)(c) of the 1970 Act]
“to construe the word "term" as referring to the totality of  the relevant contractual provisions relating to a particular subject matter, for example, "pay"; or alternatively to construe the words "benefiting that man" as importing the necessity of a comparison in relation to the totality of the relevant contractual provisions concerning a particular subject matter and then for a conclusion to be reached that, on balance, the man has thereby benefited. The latter construction I find impossible to derive from the words of the statute; and, to be fair, I do not think that there is any evidence that it would have found favour with the Court of Appeal. But what of the former, which is consistent with the judgment of the Court of Appeal? Again, I find myself unable to accept it. First, it would mean that the situation of the absent term must be confined only to those cases where there was no provision relating, for example, to pay or, I suppose, to overtime, or to some other wholly distinct topic. I cannot think that that was the intention of the legislature. In common sense terms, it means that sub-paragraph (ii) would hardly ever be relevant at all; certainly, since every contract of employment makes some provision for "pay" in the broad sense adopted by the Court of Appeal, sub-paragraph (ii) would never be relevant in relation to pay or any other form of remuneration in cash or in kind or in the form of other benefits. I find this proposition to be startling. Second, it imposes upon the word "term" a meaning which I myself do not regard as its natural or ordinary meaning. If a contract contains provisions relating to (1) basic pay, (2) benefits in kind such as the use of a car, (3) cash bonuses, and (4) sickness benefits, it would never occur to me to lump all these together as one "term" of the contract, simply because they can all together be considered as providing for the total "remuneration" for the services to be performed under the contract. In truth, these would include a number of different terms; and in my opinion it does unacceptable violence to the words of the statute to construe the word "term" in sub-paragraph (ii) as embracing collectively all these different terms.”

15	He went on in page 478 to propound the test which the Employment Tribunal found attractive, and purported to apply at B - F:  
“I do not consider that the words "a term of a similar kind" are capable of constituting a basis for building the construction of the word "term" favoured by the Court of Appeal. Again, in my opinion, the words mean precisely what they say. You look at the two contracts: you ask yourself the common sense question - is there in each contract a term of a similar kind, i.e. a term making a comparable provision for the same subject matter; if there is, then you compare the two, and if, on that comparison, the term of the woman's contract proves to be less favourable than the term of the man's contract, then the term in the woman's contract is to be treated as modified so as to make it not less favourable. I am, of course, much fortified in this approach in that it appears to me to be consistent with the only construction of sub-paragraph (ii), concerned with the case of the absent term, which I find to be acceptable. But, in addition, I feel that the Court of Appeal's attempt to introduce the element of overall comparison placed them firmly, or rather infirmly, upon a slippery slope; because, once they departed from the natural and ordinary meaning of the word "term," they in reality found it impossible to control the ambit of the comparison which they considered to be required. For almost any, indeed perhaps any, benefit will fall within "pay" in the very wide sense favoured by them, in which event it is difficult to segregate any sensible meaning of the word “term”. ”

16	Hayward -v- Cammell Laird binds us.  We derive the following conclusions from the speeches of Lord Mackay and Lord Goff, with whom the other three Law Lords agreed.  

17	First, the Tribunal must compare a term of the woman’s contract with a similar term of the man’s contract, if there is one.  It is impermissible to consider the whole of the contractual or other benefits which could be categorised as pay or remuneration for the purposes of Article 119 as was or 141 as it now is.  

18	Secondly, term means
 “a distinct provision or part of the contract which has sufficient content to make it possible to compare it from the point of view of the benefits it confers with a similar provision or part in another contract”
 per Lord Mackay, and/or:
“a term making a comparable provision for the same subject matter” 
per Lord Goff. 

19	Thirdly, the terms of individual contracts under consideration must be analysed to discern which of them are separate and distinct terms or parts of the contract, or which of them make comparable provision for the same subject matter.  

20	Fourthly, to determine whether or not the provisions of an agreement constitute one or more than one term, it is necessary to examine their content.  Nothing in Hayward signifies that the label which the parties attach to a provision affects or determines its true nature. 
21	Fifthly, most contracts of employment contain mutual obligations, first on the part of the employee to attend for work at the place or places at which he is employed, and to work when there; secondly, on the part of the employer, to make monetary payment in return for fulfilment of those obligations or that obligation.  

22	Sixthly, the provisions for payment in many contracts of employment will include an obligation to pay an hourly wage or perhaps a monthly salary, but may also include, as here, a fixed uplift, labelled by the parties as a bonus.  As the Employment Tribunal rightly held, the provision for a fixed uplift was not a separate and distinct term or part of the contract, but part of the same term as that for the payment of the hourly rate.  

23	The question which the Tribunal had to decide, and which we have to determine is how to define that term.  Mr Cross submits that any provision dealing with any element of remuneration is to be treated as a separate term for the purpose of comparison.  He founds himself upon the observations of the European Court of Justice in Barber -v- Guardian Royal Exchange Assurance [1990] IRLR 240.  In paragraphs 33 and 34 the Court observed:
“33  As regards the second of those questions, it is appropriate to refer to the judgments of 30 June 1988 in the Commission v France .. and of 17 October 1989 in Handels og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbeidsgiverforening acting on behalf of Danfoss in which the Court emphasised the fundamental importance of transparency and, in particular, of the possibility of  review by the national courts, in order to prevent and, if necessary, eliminate any discrimination based on sex.
34  With regards to the means of verifying compliance with the principle of equal pay, it must be stated that if the national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of Article 119 would be diminished as a result.  It follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women.”
24	By remuneration in that passage, the Court clearly had in mind remuneration or pay as it defined it, in paragraph 12 of its judgment:
“As the Court has held, the concept of pay, within the meaning of the second paragraph of Article 119, comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer”

25	That citation does not, however, provide the answer to the question what is a “component” of remuneration?: a collection of differently described monetary payments, treated together as one term or each being treated separately?  Indeed, unless Mr Cross’s submission goes as far as to state that the label which the parties give to a provision in a contract is determinative of the question whether or not it is a term, the observations of the European Court of Justice in Barber provide no workable test for discerning whether or not provisions amount to one, or more than one, term.  We have reached the view that the relevant term can be precisely defined and defined as follows:
“Provision for monetary payment for the performance of the contract by employees during normal working hours.”

26	Thus defined, the term satisfies the test propounded by Lord Mackay and Lord Goff.  It is a distinct part of the contract, with sufficient content to make it possible to compare it with a similar part of another contract.  It does make provision for a subject matter of the contract, namely what monetary pay an  employee is to receive for fulfilling his contractual obligations during normal working hours.  It also satisfies the principle of transparency; it is no more difficult to analyse and compare than the more limited terms for which Mr Cross contends.  

27	The question then must be answered: what is the status of the attendance allowance?  The Employment Tribunal’s analysis in paragraph 16(v) in our view merely demonstrates that the basis of calculation of the attendance allowance is different from that of basic hourly pay and the bonus.  It does not demonstrate that it relates to a different subject matter.  

28	Our view is that it does relate to the same subject matter as basic hourly pay and the bonus and is an element of a distinct part of the contract and not itself a distinct part.  It is part of the monetary payment for performance of the contract, by attending at work and working during normal working hours.  The fact that it can on occasion be paid to a man who leaves soon after he attends work does not make it any less so, nor does the fact that it is not paid for a day on which the employee is absent from work with authority, because attendance at work and performance of some work is the obligation in respect of which it, like the basic hourly pay and the bonus, is paid; nor does the fact that he employee loses the attendance allowance for the whole of the week, if his absence on one day is unauthorised.  It simply affects the amount of monetary pay receivable in the affected week, and in theory, though not surely in practice, means that the value of the attendance allowance to male employees may be fractionally less, for the purpose of comparison than the full weekly rate.  

29	Any other analysis would mean that for a full working week or working hour, the woman’s rate of monetary pay would be higher than any male comparator’s, which, on no view, is the aim of the Equal Pay Act 1970, or of Article 119, 141.  It would sit ill with the observations of the European Court of Justice Stadt Lengerich -v- Helmig [1995] IRLR 216, in which in paragraph 26 - 28 it observed:
“26  There is unequal treatment wherever the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked on the basis of an employment relationship.
27  In the circumstances considered in these proceedings, part-time employees do receive the same overall pay as full-time employees for the same number of hours worked.
28.  A part-time employee whose contractual working hours are 18 receives, if he works 19 hours, the same overall pay as a full-time employee who works 19 hours.”

30	It would also, in our view, impose an inequitable burden, surely not intended by Parliament, on the current generation of Council Tax payers and general tax payers, Helmig shows, in our view, how the comparison should be made.  All monetary payments received by male comparators for normal working hours should be aggregated and divided by the number of hours in the working week, to give an hourly rate.  That hourly rate should be compared with the woman’s hourly rate; if it is greater, the woman’s hourly rate should be increased to eliminate the difference.  

31	In our view, therefore, the Tribunal came to an erroneous conclusion of law in deciding that the provision for the attendance allowance was a separate term and not part of a single term, as we have identified it.  Our conclusion on that issue deals with the second issue: how should the attendance allowance be apportioned?  It is unnecessary for us to say anything further about that issue and we do not do so.  

32	We turn then to the final issue: interest.  The relevant provisions for interest are contained in the Employment Tribunal’s Interest on Awards in Discrimination Cases Regulations 1996.  Regulation 2 provides:
“(1) Where, at any time after the commencement of these Regulations, an [employment tribunal] makes an award under the relevant legislation -
(a) it may, subject to the following provisions of these Regulations, include interest on the sums awarded:….”
Regulation 3 makes provision for the rate of interest.  Regulation 3(3) states:

“Where the rate of interest in paragraph (2) has varied during a period for which interest is to be calculated, the tribunal may, if it so desires, in the interests of simplicity, apply such median or average of those rates as seems to it appropriate.”

Regulation 4 provides for the calculation of interest as follows:

“(2)  In regulation 6, “mid-point date” means the day which falls half way through the period mentioned in paragraph (3) or, where the number of days in that period is even, the first day of the second half of the period.
(3) The period referred to in paragraph (2) is the period beginning on the date, in the case of an award under the 1970 Act, of the contravention and, in other cases, of the act of discrimination complained of, and ending on the day of calculation.”

Regulation 6(1)(b) provides:

“Subject to the following paragraphs of this regulation -
…
(b) in the case of all other sums of damages or compensation (other than any sum referred to in regulation 5) and all arrears of remuneration, interest shall be for the period beginning on the mid-point date and ending on the day of calculation.”

33	It is, in our view, perfectly clear what the draftsman had in mind, though the language that he used to achieve his aim may, in one or two instances, lack perfect clarity.  What he had in mind, in relation to a loss which extended over a period, was that the calculation of interest should start at the beginning of the period, and be taken up to the date of calculation.  That period should then be halved and interest at the full rate be applied to half of the period  In so doing, rough and ready justice, as in personal injury cases, would be achieved.  There would, of course, be anomalous cases, but in the broad run of cases, an applicant would be properly compensated for not receiving on the due date arrears of pay which she would have received.  To take a commonplace example, in the case of sexual discrimination resulting in unfair dismissal, where the applicant remained unemployed from that date until the date of calculation, the interest would be calculated on half of the whole period from dismissal.  Should there be any difference, where the employee is not dismissed but remains employed, so that what occurs is not loss due to unfair dismissal but arrears of pay under a continuing contract?  

34	No sensible reason has been advanced, or in our view could be advanced, for drawing any distinction between the two.  Why should the employee, who remains in employment, be in a markedly worse position than the employee who loses her employment?  We can think of none.  Is a distinction, for which there is no sensible reason, compelled by the wording of Regulation of 4(2)?   On a literal construction, it is possible to argue that the contravention, there referred to, occurs week by week or day by day so that the mid-point should be taken day by day or week by week, between each contravention and the date of calculation.  The upshot would be a rate of interest approximately a quarter that of the full rate over the period.  

35	In our view, such a bizarre result can readily be avoided by a sensible construction of Regulation 4(3), aided by the Interpretation Act 1978.  If contravention is treated as it can be, by virtue of the principle that the singular includes the plural, as including contraventions, then the Regulation can sensibly be read as follows: 
“The period referred to in paragraph (2) is the period beginning on the date, in the case of an award under the 1970 Act, of the beginning of the contraventions and ending on the day of calculation”

In our view, the conversion of contraventions into the plural and the introduction of a word to make sense of the sentence thus created does no violence to the intention of the draftsman.  

36	For those reasons we reject the proposition that the Employment Tribunal got the calculation of the rate of interest wrong; in our view, it reached the right decision and that element of the appeal is dismissed.  

Mr Cavanagh and Mr Cross, I believe that deals with all of the matters which you have asked us to deal with, subject only to declining to go into, on our view, the theoretical question, the second question which you posed.  Do either of you, as you have each lost part, have any further applications?
Draft form of the Order - in the Notice of Appeal - page 79 Practice Direction - sir, as I understand the Employment Tribunal in practice ……….. on the two points that we have won, the issue as to aggregation has been decided in our favour.  Also the issue as to whether the attendance allowance should be calculated hour by hour or day by day in effect has been decided in our favour.

With respect to your draft, I do not think it does accurately reflect our conclusion.
Not it doesn’t  but I will raise it with you …the point is that you made that all monetary payments should be calculated and divided by the hourly rate.  

No, all monetary payments payable in respect of a normal week’s work should be divided by the number of normal hours, to produce an hourly rate.  
Yes, but what follows from that is the Tribunal’s original finding which was that when including that global figure, the amount that is  derived from the attendance allowance,  you should for an hour’s work, on a particular day, give the equivalent worth same daily rate as the comparator - that is wrong and instead what the Tribunal should do is work out the equivalent hourly rate and include that in …

But I thought I had set it out in sufficient clarity in the text of the judgment
I believe you did, but I just wanted to raise it at this stage so that there is no doubt about it when it comes to drawing up the Order, so that the Tribunal understands the position 

Sir, I think the position has been sorted out by Mr Cross in his place - 
Right, good.