Appeal No. UKEAT/0006/08/CEA
UKEAT/0057/08/CEA
UKEAT/0058/08/CEA
UKEAT/0168/08/CEA
UKEAT/0276/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	26 March 2009
Judgment handed down on 24 June 2009

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR D WELCH
MR S YEBOAH

UKEAT/0006/08/CEA

HARTLEPOOL BOROUGH COUNCIL	APPELLANT

MR P LLEWELLYN AND OTHERS	RESPONDENT

UKEAT/0057/08/CEA

MIDDLESBROUGH BOROUGH COUNCIL	APPELLANT

MR A MATTHEWS AND OTHERS	RESPONDENT

UKEAT/0058/08/CEA

SOUTH TYNESIDE BOROUGH COUNCIL	APPELLANT

MR P MCAVOY AND OTHERS	RESPONDENT

UKEAT/0168/08/CEA

MIDDLESBROUGH BOROUGH COUNCIL	APPELLANT

MR R ASHCROFT AND OTHERS	RESPONDENT

UKEAT/0276/08/CEA

(1) MR P MCAVOY AND OTHERS	APPELLANT
(2) MR P LLEWELLYN AND OTHERS
(3) MR P MCAVOY AND OTHERS

(1) SOUTH TYNESIDE BOROUGH COUNCIL	RESPONDENT
(2) HARTLEPOOL BOROUGH COUNCIL
(3) MIDDLESBROUGH BOROUGH COUNCIL

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For Hartlepool and South Tyneside	MR JOHN BOWERS 
(One of Her Majesty’s Counsel)

MR SEAMUS SWEENEY
(Of Counsel)
Instructed by:
Hartlepool Borough Council Legal Service
Civic Centre
Victoria Road
TS24 8AY
	
For Middlesbrough 	MR CHRISTOPHER JEANS 
(One of Her Majesty’s Counsel)

MS JANE CALLAN
(Of Counsel)
Instructed by:
Middlesbrough Borough Legal Service 
PO Box 99A
Town Hall
Middlesbrough
TS1 2QQ
	
For the Claimants	MR ROBIN ALLEN
(One of Her Majesty’s Counsel)

MS SARAH BOURKE
(Of Counsel)
Instructed by: 
Messrs Stefan Cross
Buddle House 
Buddle Road
Newcastle upon Tyne
Tyne & Wear
NE4 8AW

SUMMARY

EQUAL PAY ACT – Material factor defence
Male colleagues of female equal pay claimants may bring “piggyback” contingent claims using the female claimants as comparators and may recover sums equivalent to those awarded to such comparators by way of arrears.  

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1.	These appeals raise the issue, which has vexed employment practitioners for many years, of the admissibility of “piggyback” claims by male colleagues of women who have brought successful equal pay claims.  They arise in the context of three of the equal pay “multiples” proceeding in the Newcastle-upon-Tyne region, in which the respondents are South Tyneside Borough Council, Hartlepool Borough Council and Middlesbrough Borough Council (“the Councils”): the multiples go under the names of Anderson (South Tyneside), Dolphin (Hartlepool) and Surtees (Middlesbrough).  The claims comprising them were mostly brought between 2003 and 2005, though some further claims have come in since.  The claimants in all three multiples were represented by Stefan Cross Solicitors.  

2.	In each of the multiples the great majority of the claimants are women, mostly though not exclusively employed in predominantly female jobs.  Their claims relate to payments made to employees in predominantly male jobs under so-called “bonus schemes”.  Those schemes, which were not available in the jobs in which the claimants worked, were ostensibly designed to reward improved productivity, but the claimants have contended that that was no longer their purpose or effect (if it ever had been) and that the “bonuses” had for some time simply reflected additional remuneration for doing the basic job.  The bonuses in question were discontinued in 2005, as part of the replacement of the old pay structures contained in the “White Book” and “Purple Book” by a “single status agreement” (the “Green Book”); but they continued by way of “pay protection” for two or three more years in at least some cases.  

3.	In relation to some groups of claimant there is an issue as to whether they are employed on work of equal value with their comparators; in other cases - specifically those of claimants who had been employed on White Book terms – that issue does not arise because their work and their comparators’ had been rated as equivalent.  In all cases, however, there has been a fundamental issue as to whether the bonus arrangements, or their supposed rationale, could be relied on as a “material factor” justifying the relevant differentials.

4.	At various dates between September 2005 and August 2007 tribunals in each of the multiples have rejected the “material factor” defence in the case of women employed in predominantly female jobs.  There have been appeals in Anderson and in Dolphin but the decisions of the tribunal were for the most part upheld.  Accordingly in those cases where equal value was not in issue the female claimants in question have been successful in their claims.  Because by the dates of the tribunal decisions the bonus payments were in the course of being phased out, the female claimants’ principal entitlement as the result of their success was not so much to future enhancements in their remuneration as to payment of arrears, partly for the period before the presentation of their claims and partly for the period between then and the decision of the tribunal.  

5.	From the start the claimants in these multiples have included men who worked alongside the female claimants and who have claimed on the basis that, if and to the extent that the women’s claims succeeded, they would be entitled to equivalent payments using the successful women as comparators.  The Councils deny that such claims are admissible under the Equal Pay Act 1970.  Once it became clear that at least some of the women’s claims had succeeded, the question of these “male contingent claims” fell to be resolved.  In January 2007 directions were made for an issue to be tried in all three multiples (and indeed in a fourth – Joss v Cumbria County Council – but that did not proceed) on the following question:

“Whether contingent male claimants, who rely upon female claimants on like work in female dominated jobs who have been successful in their equal pay claims, can rely upon those females as their comparators, or whether there is a genuine material factor untainted by sex explaining the difference in sex.”

(The reference to female claimants doing “like work” was subsequently expanded to those doing any kind of “comparable work”, i.e. including work rated as equivalent or of equal value, to that done by the male claimants.)

6.	That issue was heard by Employment Judge Hargrove, sitting alone, at Newcastle over three days in September 2007.  There were initially ten lead claimants – Messrs. Abbott, Shields and McAvoy in the South Tyneside case; Messrs. Llewellyn and Ward in the Hartlepool case; and Messrs. Matthews, Walker, Myers, Ashcroft and O’Hagan in the Middlesbrough case.  The hearing was listed under the names of Abbott, Llewellyn and Matthews.  By a reserved Judgment, with Reasons, sent to the parties on 12 November 2007 Judge Hargrove held that:

“Male contingent claimants within these multiples are entitled to an equality clause with their relevant female comparators from the date upon which the relevant female comparator(s) presented her successful claim, but are not entitled to the comparator’s arrears of pay accruing prior to that date.”

The claims accordingly succeeded, but not to the full extent asserted by the Claimants inasmuch as their entitlement to arrears was held to go back no further than the date of the presentation of the comparators’ claims.  

7.	The Councils have appealed against the decision that the Claimants are entitled to make any claim by reference to their female comparators; and there is a cross-appeal by the Claimants against the refusal to extend their entitlement to arrears beyond the dates of the presentation of the comparators’ claims.  Mr Abbott has now settled his claim against South Tyneside; and the relevant appeal now goes under the name of Mr McAvoy.

8.	There is another aspect to the appeals.  The issue described above arises in its pure form in respect of an actual or assumed successful claim by a female comparator under the 1970 Act.  But in the case of South Tyneside a compromise was reached in March 2006 under which claimants would be paid a single lump sum in April 2006 representing a discounted proportion of both past and future claims.  The original offer was that that settlement would be available to female and male claimants alike; but at the last minute the Council on legal advice withdrew it as regards male claimants.  The male claimants contend that that difference of treatment was discriminatory; but it was common ground that, for reasons which we explain below, no claim could be advanced in relation to it under the 1970 Act and that any such claim could only be brought under the Sex Discrimination Act 1975.  Judge Hargrove decided that claim also in the male claimants’ favour, holding that:

“The male contingent claims in the South Tyneside case to have been subjected to a detriment in contravention of section 6(2) of the Sex Discrimination Act 1975, by ceasing to offer them the opportunity of a settlement of their claims, is [sic] well founded.”

South Tyneside appeals against that decision.  

9.	There is a further complication.  Following the original decision it transpired that, by a misunderstanding, it had not been appreciated that what was said to be a similar claim under the 1975 Act by Mr Ashcroft against Middlesbrough remained live.  Judge Hargrove accordingly promulgated a conducted a further hearing and Judgment, sent to the parties on 7 January 2008, reaching the equivalent conclusion to that which he had reached in the South Tyneside case.  That Judgment is, procedurally, the subject of a separate appeal by Middlesbrough.  

10.	Before us, as before the Tribunal, the Claimants are represented by Mr Robin Allen QC and Ms Sarah Bourke; South Tyneside and Hartlepool by Mr John Bowers QC and Mr Seamus Sweeney; and Middlesbrough by Mr Christopher Jeans QC and Ms Jane Callan.  

THE EQUAL PAY ACT CLAIM

THE STATUTORY PROVISIONS

11.	Section 1 of the Equal Pay Act 1970 provides (so far as relevant) as follows:
 “(1)     If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
(2)     An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman's contract”), and has the effect that—
(a)     where the woman is employed on like work with a man in the same employment—
(i)     if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
(ii)     if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term;
(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;
(c)     where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, 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 not to be less favourable, and
(ii)     if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term;
(d)-(f) 	… .
(3)     An equality clause falling within subsection (2)(a), (b) or (c) above shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor—
(a)     in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and
(b)     in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference.

Section 2 (1) gives employment tribunals jurisdiction to determine

“any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration… in respect of the contravention.”

12.	Two features of section 1 of the 1970 Act need to be noted, although they are not controversial:

(1)	The mechanism employed to achieve equal pay is contractual. Every contract of employment is deemed to include an “equality clause”, whose effect is, when the necessary conditions are satisfied, that its terms will be “treated as” altered (whether by modification of an existing term or inclusion of an absent term) so as to achieve equality with the relevant terms of the comparator’s contract.

(2)	The effect of sub-sections (2) and (3) taken together is that if one of the “comparable situations” defined at (a)–(c) under section 1 (2) arises, there is a presumption that the equality clause will “operate”; and that presumption can only be rebutted by virtue of section 1 (3) if the employer can demonstrate (in effect) that the differential is not discriminatory – see the pellucid summary in the speech of Lord Nicholls in Glasgow City Council v Marshall [2000] ICR 196, at pp. 202F–203A.

13.	The operative provisions of the Act do not use the terminology of discrimination or the mechanisms familiar from other anti-discrimination legislation (although its long title is “an Act to prevent discrimination, as regards terms and conditions of employment, between men and women”).  But this is a reflection of its venerable age, and it is well-established that its provisions must be construed, so far as possible, in conformity with general UK and EU discrimination law.  As regards EU law, the Act, in so far as it concerns contractual remuneration, represents the UK’s implementation of the “principle of equal pay” deriving from art. 141 of the EU Treaty.  That principle requires:
 
“for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration”

(see art. 1 of the Equal Pay Directive (75/117/EEC), shortly to be replaced by art. 4 of Directive 2006/54/EC, which is in substantially identical terms).  Thus, while it is necessary to take the words of the Act as a starting-point, the essential question is always whether the claimant has been a victim of sex discrimination.    

OUR APPROACH

14.	In our view the right starting-point is to consider what the Claimants’ rights would have been if they had not brought contingent claims but had – as they could perfectly well have done – waited until their comparators’ claims had succeeded and commenced proceedings at that point.  That involves two questions:

(1)	Do they have a claim at all ?

(2)	If so, what is its scope ?  More particularly, could they claim arrears in respect of the period prior to the decision in favour of their comparators; and if so, how far back ?

Once those questions are answered, it will be easier to address the essentially secondary question of whether it is permissible to claim on a contingent basis.

(1)	DO THE CLAIMANTS HAVE ANY CLAIM ?

15.	The question which arises under this head is whether a male claimant is entitled under section 1 of the Act to the benefit of a contractual term enjoyed by a female comparator when the comparator herself has only acquired the benefit of that term as a result of the operation of the Act.  We take, for the sake of illustration, a case where the woman (F1) and the man (M1) are working alongside one another on the same work, but the man is being paid £9 per hour whereas the woman - by virtue of a previous successful claim by reference to the pay of a man doing a different job (M2) - is receiving £10.

16.	There is, surprisingly, no authority directly on that question: some cases address it tangentially, but it is common ground that they do not do so as a matter of ratio.  We prefer therefore to approach the issue on the basis of first principles though we will return to the authorities at the end of our analysis: see para. 24 below.

17.	The starting-point must be the terms of the Act.  Applying those terms literally, the basic elements for the operation of the statutory presumption under (in our example) section 1 (2) (a) would appear to be present.  To spell it out:

(1)	A man and a woman are employed on like work.

(2)	A term of the man’s contract – namely the term as to remuneration – is less favourable than a term of the woman’s contract because he is entitled to £1 less per hour.

(3)	Ergo his contract is to be “treated as so modified as not to be less favourable” (see section 1 (2) (a) (i)) – i.e. by substituting £10 per hour for £9 per hour.

It is true that the term of F1’s contract with which M1’s is to be compared – i.e. at stage (2) above – is itself the result of a statutory modification.  But the Act does not – subject to the point which we consider at paras. 18-20 below – distinguish between terms deriving from agreement and terms inserted or modified by statute.  Whatever their origin, they are all “terms”.  (We have considered whether any point could be taken on the use of the formulation “shall be treated as modified”, rather than “shall be modified” tout court; but we cannot see any difference of substance between the two.)

18.	Mr Bowers and Mr Jeans however rely on the parenthetical phrase (repeated in each sub-division of section 1 (2)) “apart from the equality clause”.  They say that that means that M1 is only entitled to compare his terms with those of F1 apart from the modification introduced as a result of her own successful claim: in other words, in our example, the additional £1 must be ignored because it is the product of the equality clause.  

19.	We are not persuaded by that submission.  We would make four points.

(1)	The submission requires “the equality clause” being referred to in the parenthesis to be the equality clause in the comparator’s contract: the phrase has to mean “apart from the effect of any modification of the comparator’s contract as a result of the operation of the equality clause in that contract”.  That does not seem to us the natural reading of the parenthesis in the context in which it appears, where the reference appears to be to “the woman’s contract”, i.e. the contract of the disadvantaged employee (being in our case, exceptionally, a man (M1)).

(2)	We see no sign that the draftsman had the question of “piggybacking” in mind.  If he contemplated such claims at all (which cannot be assumed) and regarded them as inadmissible (which we see no reason to believe – see below), there would have been far more explicit means of precluding them than by resort to a somewhat opaque parenthesis of this kind.

(3)	The Councils’ construction would lead to anomalous results.  If the employer, recognising the strength of F1’s claim to equal pay, agreed without proceedings (or by settlement in the course of proceedings) to pay her the same as M2, the modification of the term as to pay (i.e. from £9 to £10) would be the result of actual agreement and would unquestionably be available for comparison in a claim by M1.  It is hard to see a justification for there being a different result where the modification takes effect only by virtue of the statute.

(4)	In our view it would as a matter of general principle be discriminatory for men in the position of M1 not to be entitled to the same pay as F1 following the success of her claim.  We deal with this point more fully at para. 22 below.

20.	In our view the phrase “apart from the equality clause” is intended to do no more than put a break in the logical circle which might – at least to the pedantically-minded – otherwise arise.  If an equality clause could only operate if the woman’s contract were less favourable than the man’s, it could be said that that condition would never in fact arise because the contract included an equality clause.  No doubt the meaning would have been perfectly clear without the parenthesis; but there are plenty of precedents for such meticulous caution on the part of the Parliamentary draftsman.

21.	That however only gets us to first base.  There remains the question whether the statutory presumption can be rebutted by reference to section 1 (3).  Mr Bowers and Mr Jeans submit that it can.  They submit that the differential between M1’s contract and F1’s is due to a material difference between their cases (other than the difference of sex between them), namely that F1 was the beneficiary of a tribunal award and M1 was not – or, to put it another way, that she was, and M1 was not, entitled under Act to compare her terms with M2’s.  More broadly, they submit that there is in such a case in truth no sex discrimination.  F1 is not in reality M1’s comparator: she is a mere conduit for the actual comparator, who is M2, another man.  The House of Lords, both in Strathclyde Regional Council v Wallace [1998] ICR 205 and in Marshall, has emphasised that the Act is not engaged by differences in pay between men and women except to the extent that those differences can be characterised as sex discrimination: the fact that the differential may be unfair is irrelevant – see per Lord Browne-Wilkinson in Wallace at p. 210 E-H and per Lord Nicholls in Marshall at pp. 201-2.  

22.	We do not accept those arguments.  In our view a male claimant in the situation which we are considering is clearly a victim of (direct) sex discrimination, that is – to use the terminology of not only the UK but the EU jurisprudence – discrimination “on the grounds of his sex”.  The meaning and effect of that phrase (and its cognates in the other discrimination legislation) has been discussed in numerous authorities which we need not review here: the key cases are James v Eastleigh Borough Council [1990] ICR 554 (esp. per Lord Goff at pp. 574 E-H and 576 B-F), Nagarajan v London Regional Transport [1999] ICR 877 (esp. per Lord Nicholls at pp. 884-5); and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 (esp. per Lord Nicholls at p. 1072 (para. 29)).  While in some cases it may be necessary to establish the “ground” or “reason” for the conduct in question by examining the thought processes of the putative discriminator, in others it is sufficient that what Lord Goff in James called “a gender-based criterion” has been applied.  This case is of the latter type.  If one asks why M1 is getting £1 less per hour than F1, it would be both natural and correct to answer “because he is a man”.  It is true that it would also be possible to say, as the Councils prefer to put it, “because F1 succeeded in an equal pay claim”; but that begs the question why M1 cannot likewise bring such a claim, to which the only answer is that both he and the comparator, M2, are men.  To use, again, the test proposed by Lord Goff in James, “but for” M1’s sex he would be entitled to the same pay as F1.  In the language of section 1 (3), the factor relied on by the Councils as explaining the difference as between M1’s case and F1’s is not a factor other than “the difference of sex”.  

23.	Having arrived at that conclusion on a purely analytical basis, we should say that we regard it as entirely acceptable on policy grounds.  In our view it would be surprising and unsatisfactory if the 1970 Act offered no remedy to men in a situation like the present.  The case where men and women do the same job but receive different rates of pay is the paradigm of the kind of situation which the Act was intended to prevent: how would it seem if – unusually, but not impossibly - the roles were reversed and the “piggyback” claimants were not men but women ?  Mr Bowers and Mr Jeans submitted that Parliament cannot have intended a “ratchet effect”, or general levelling-up, under which male low-paid workers get the benefit of successful equal pay claims by their female colleagues.  Whether or not this effect was expressly contemplated, we can see no reason why it should be regarded as axiomatically unacceptable.  We acknowledge that it is at first sight, as Lord Nicholls observed in Marshall, “curious … that in a sex discrimination case …, on the same facts, claims by women and a claim by a man [should] all succeed” (see p. 202F); but part of that “curiosity” arises from the feature of the man’s claim being brought contingently.  Once the underlying logical sequence is appreciated, the problem disappears.  

24.	Although, as we have said, there is no binding authority on this issue, our conclusion is supported by such indications as there are in the decided cases.  We would refer to the following:

(1)	In the part-time pension litigation the applicants’ case depended on the minimum-hours qualification for entry to occupational pension schemes being discriminatory against women.  Yet a number of men issued proceedings at the same time as the women, on a similar contingent basis to the Claimants in the present case.  At an early stage in the litigation the respondents applied to strike out their claims, on the basis both that the men could have no claim because they were not themselves the victim of discrimination and that, even if they could, their claims were premature.  The industrial tribunal chairman refused the application.  That decision was upheld in this Tribunal and subsequently in the Court of Appeal – Preston v Wolverhampton Healthcare NHS Trust [1996] IRLR 484 (see per Mummery J. at p. 496 (paras. 135-145)) and [1997] IRLR 233 (see per Otton LJ at pp. 241-2 (paras. 85-92)).  It is not entirely clear to what extent either this Tribunal or the Court of Appeal were intending definitively to decide the question whether the male applicants had a claim or were merely holding that it was arguable that they did; but we note that at para. 143 of his judgment Mummery J. said this:

“… It is not in dispute that, if a female part-time employee were in fact admitted to a scheme in the future and became entitled to benefits, but a male part-time employee continued to be excluded, there would be a breach of the equality clause in the man’s contract of employment and that breach would continue to be directly discriminatory against him, until his rights were made coextensive with those of his female comparator.  The rules would have to be amended.  Further, if the benefits awarded to women were backdated, but a man continued to be excluded, then there would be a remedy for past breaches of the 1970 Act granted to female part-timers but also affecting male part-timers.”

That concession – made by a galaxy of distinguished counsel and apparently endorsed by Mummery J. – is wholly in line with our conclusion.

(2)	South Ayrshire Council v Milligan [2003] IRLR 153 concerned multiple equal pay claims brought by primary school headteachers in Scotland, who were predominantly female.  The claim was based on a comparison with the pay of secondary school headteachers, who were predominantly male.  There were several male contingent applicants.  The respondents sought to have the male applicants’ claims declared incompetent.  The industrial tribunal refused the motion and its decision was upheld by this Tribunal and by the Inner House.  The details of the reasoning of the Inner House are for present purposes unilluminating; but in essence it followed Preston.

(3)	In Villalba v Merrill Lynch & Co. Inc. [2007] ICR 469 this Tribunal was concerned with a submission that the decision of the European Court of Justice in Brunnhofer v Bank der Osterreichischen Postparkasse AG [2001] IRLR 571 meant that any difference between the pay of a man and of a woman in the same employment had to be objectively justified, even in the absence of any element of sex discrimination.  In the course of reviewing the consequences if that submission were well-founded, Elias P. observed, at p. 511D, that:

“Once [the woman’s] claim has succeeded, of course, the men [doing the same job] can thereafter compare themselves with her so as to lead to an improvement in their pay also.”  

If the Councils’ submissions were correct, that observation was simply wrong.  Yet Elias P. plainly regarded it as self-evident.

We shall have to return to Preston and Milligan in a different context in due course.

25.	Mr Jeans at least was evidently uncomfortable with the exposed position into which his submissions led him.  He was willing to concede that if, following a decision in favour of F1, an employer continued “in the long term” or “indefinitely” to maintain the differential the position would or might be reached when he could no longer rely on the fact that F1’s higher pay was the result of a successful equal pay claim as satisfying section 1 (3).  But that concession – which itself begs a number of further questions – does not deflect the force of the Claimants’ case.

(2)	THE SCOPE OF THE CLAIM

26.	The question here is in respect of what period, if any, the Claimants are entitled to claim arrears.  Again, there are no authorities in which the question is directly considered.

27.	The Claimants’ position is that they are entitled to go back for the full period in respect of which their female comparators have been awarded arrears.  Thus, to revert to our simplified illustration, if, say, F1 in 2005 was awarded arrears back to 2000 (because M2 was an available comparator for her for that period) M1 is entitled to recover arrears in respect of the equivalent period (assuming always that F1 was an available comparator for him throughout the period).  Mr Allen’s argument is that the fact that it was throughout that period a term of M2’s contract that he was entitled to £10 per hour (for the sake of simplicity we ignore any pay increases) means that section 1 (2) operates directly, and without the need for any order of the tribunal, to modify the equivalent term in F1’s contract: that is, he submits, what the sub-section appears to provide for, and it must in any event be the case since otherwise there would be no basis for the award of arrears to F1.  In other words, when the tribunal came to make its award it was doing no more than declare the existence of a modification which had already taken effect: accordingly the modified term was available to M1 for the purpose of comparison in respect of the entire period.

28.	The Councils’ response is that the retroactive effect of the tribunal’s decision (i.e. in awarding arrears) is a legal fiction.  Whether the term had been modified was unknowable unless and until the tribunal so held.  Thus the modification of F1’s contract was up to that point potential rather than actual, and section 1 (2) cannot be read as permitting a comparison with a contractual term which is inchoate and, so to speak, unrecognised.  It was only at the point that the tribunal held in favour of F1 that the modification of the term in her contract took effect; and M1 accordingly had no claim in relation to any prior period.  Mr Jeans and Mr Bowers pointed out that if the Claimants’ analysis were correct F1 need never have claimed at all: M1 could mount a valid claim by reference to a modification of F1’s contract (i.e. by comparison with M2’s) which F1 herself had never asserted, which neither the employer nor a tribunal had ever recognised, and in respect of which no payment had ever been made.  Mr Allen did not shrink from that consequence: he asserted both before the Tribunal and before us that there was no objection in principle to such a claim.

29.	It will be noted that neither party’s submission corresponds to the decision of the Tribunal, namely that the Claimants are entitled to arrears back to the date of the presentation of F1’s claim.  We mean no disrespect to the painstaking consideration on the part of the Employment Judge when we say that we have not been able to identify in the Reasons any passage which directly explains the basis for his conclusion on this point.

30.	We agree with Mr Allen that the conceptual approach adopted by the draftsman of section 1 appears to be that the modification of the term in “the woman’s contract” occurs automatically if the required conditions apply and that it is not dependent on any decision to that effect by the Tribunal; and such an approach would indeed seem to be necessary to justify the award of arrears.  But that does not necessarily answer the question whether a term so modified is “available” to a piggyback claimant of the opposite sex.  The essence of the Councils’ argument is that section 1 (2) provides for comparison only with terms which have been “really” modified rather than modified by a retroactive fiction.

31.	It does not seem to us that the language of the Act gives any assistance on that question: as we have already observed, it is doubtful whether the draftsman specifically considered the possibility of piggyback claims.  It is necessary to consider the question as a matter of principle.  The starting-point is that the arrears awarded to F1 represent pay, albeit paid late and only as a result of her bringing a tribunal claim: that seems to us to be clearly the case on a purely domestic law analysis, but if there were any doubt about the matter EU law adopts a very broad definition of “pay”.  The entitlement to that pay accrued to F1, pay-day by pay-day, over the period for which M2 was an available comparator, by way of (part) consideration for the work done by her over that period, even though that entitlement was not recognised or satisfied by the employer at the time.  That being so, it is hard to see any principled reason why that pay should be excluded from consideration in deciding whether M1 has received equal pay with F1.  He has been working alongside her throughout the relevant period.  If she had received the pay in question at the time that it fell due he would have been entitled to its equivalent: why should it make a difference that it has been received in arrears?  We have no difficulty with the submission that the Act should be concerned only with real, as opposed to notional, discrimination (in fact we apply it at para. 32 below); but we believe that in such a case M1 does indeed suffer real discrimination, on the straightforward basis that F1 has received £10 per hour for the period 2000-2005 and he has received only £9.

32.	We do not accept that this approach would allow the kind of claim hypothesised by Mr Jeans and Mr Bowers in order to frighten us, under which men could advance piggyback equal pay claims even where the female comparator on whom they relied had brought no claim herself (see para. 28 above).  As they themselves assert, EU equal pay law, to which UK law conforms, depends on concrete comparison.  That is well-established in the context of the need for a complainant to found her claim on comparison with an actual, as opposed to hypothetical, male comparator: see the decision of the European Court of Justice in Macarthys Ltd v Smith [1980] ICR 672 (especially para. 15, at p. 691) and the recent decision of Elias P. in Walton Centre for Neurology and Neurosurgery NHS Trust v Bewley [2008] IRLR 588.  In our judgment a similar approach based on concrete comparison should be followed in the present context.  The law should be engaged when, but only when, there is a substantial, rather than potential or notional, difference in the treatment of claimant and comparator – i.e. in practice in cases where the comparator actually receives better pay than the claimant.

33.	In short, we agree with Mr Allen that F1’s entitlement to equal pay with M2 arises – or, as Elias P. put it in Sodexo Ltd. v Gutridge (see para. 35 (2) below), “bites” – as soon as the conditions specified in section 1 (2) are satisfied.  But for the purpose of a claim by M1 there is no actual discrimination unless and until F1 is paid, or receives an award, in respect of that period.  His claim depends on the payment or award of the arrears, not on the accrual to F1 of the underlying theoretical right.  We should add, however, that if the comparators receive interest on the arrears, the male claimants should do so too.  Though their entitlement may be triggered by the payment to the comparators, it represents pay for a past period.

34.	That being the correct result in principle, we see no difficulty in construing the Act accordingly.  In our view the reference in section 1 (2) to a “term” in the man’s (i.e. the comparator’s) contract should be construed as a reference to either a term in the contract as actually agreed between the parties or a term acknowledged by the employer or declared by a tribunal to have been inserted or modified following a claim under the Act.  We see no difficulty in construing the statutory provisions in this way in order to give effect to the policy of the Act, and the underlying EU law, as we understand it to be.  On this approach the focus is not on the metaphysical question of when the modification “really” occurs but on the fact that the arrears are pay and that once the comparator receives them the claimant should do so too.

35.	Although, as we have said, there are no authorities directly in point, Mr Bowers and Mr Jeans relied on two cases to which we should briefly refer.

(1)	In Sorbie v Trust House Forte Hotels Ltd. [1977] ICR 55 the issue before this Tribunal was whether applicants who had overlapped with their comparators for only a brief period after the coming into force of the 1970 Act could continue to claim equality after their comparators had left.  At p. 59 E-G of the judgment, after identifying that the applicant’s term as to pay (85p per hour) was less favourable than her comparator’s (97½p), Phillips J said this:

“One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants' contracts shall be treated, as so modified, as not to be less favourable. It seems to us that the way it is treated, as so modified, is to strike out 85p and to substitute 97½p. Upon an application made to an Industrial Tribunal under s. 2 — where we think there is power to grant a declaration, or to order the payment of arrears of remuneration, or damages in respect of contravention — the situation is that the Industrial Tribunal, if it so applies s. 1 (2)(a)(i), will find that the contracts of the appellants when modified contains a clause under which they are entitled to remuneration at the rate of 97½p. In other words, once the section is applied and the contract is modified, there is then a contract providing remuneration at that rate. It seems to us that the true way of looking at it is that that contract remains so modified until something else happens, such as a further agreement between the parties, a further collective agreement, or a further statutory modification by reason of a further operation of the equality clause.” 

Mr Bowers emphasised the phrases “when modified” and “once the contract is modified, there is then …”.  

(2)	Sodexo Ltd. v Gutridge [2009] ICR 70 concerns the effect of an equality clause in the context of a TUPE transfer.  In that connection Elias P. observed, at para. 53 (p. 85), that:

“… the equality clause does not simply hover over the employment relationship between an employer and employee; it bites once the conditions for its application are met.”

Neither case was concerned with the issue with which we have to decide, and the language used cannot fairly be pressed into service in support of either party’s contentions.  But in fact both passages seem to us entirely consistent with our analysis.

36.	In summary, if the Claimants in the present case had brought their claims following the award of the arrears to F1, they would in our judgment plainly have been entitled to claim an amount equivalent to those arrears, or at least to that part of them representing the period for which the women in question were available comparators.  There is no basis for the cut-off adopted by the Tribunal.  The appeals must accordingly be dismissed, and the cross-appeals be allowed, unless it was wrong in principle for the claims to be brought contingently.

(3)	CAN THE CLAIMS BE BROUGHT CONTINGENTLY ?

37.	The previous two questions have been concerned with the issues of substance raised by the Claimants’ case.  The present question is essentially procedural.  The Councils’ case is that, even if the Claimants do in fact have a claim, that claim only arises as and when the tribunal makes an award in favour of their female comparators; and any proceedings brought prior to that point are necessarily premature.  

38.	The authorities appear to be against that submission.  In the judgment of this Tribunal in Preston (see para. 24 (1) above) Mummery J. pointed out that there would be real prejudice to male piggyback claimants who were forced to await the outcome of their female comparators’ claim before bringing their own proceedings.  He said, at para. 143 (p. 496):

“If a man were not able to institute proceedings unless and until a female employee is admitted to a scheme in the future, he would be prejudiced in his claims for equal pay. A female part-time employee might not be admitted until the conclusion of all the issues in these proceedings. That might take several years to achieve. By then a successful female applicant would be entitled to backdating at the very least to the time when she instituted her proceedings and two years prior to that. If a male part-time employee were not entitled to institute such a case until then, he would never be able to achieve an equality of benefit with a female part-time employee pursuant to the equality clause in his contract. A striking order might therefore inflict real injustice on male part-timers.”

The particular points made in that passage are specific to the nature of the claim in the litigation, i.e. denial of access to a pension scheme; but the underlying point is equally applicable to a claim for arrears of pay.  Otton LJ in the Court of Appeal (see para. 24 (2) above) endorsed that reasoning: see para. 92 (p. 242).  Likewise in Milligan (see para. 24 (3)) the Inner House said, at para. 14 (p. 155):

“[If] it were held to be incompetent for the respondent to claim on a contingent basis, he would suffer a real prejudice in relation to back pay since he could lodge a claim only after the comparator’s claim succeeded.”

39.	We have already observed that it is not entirely clear on what basis those cases were argued or what, as a matter of ratio, they decide.  The question of prematurity is not specifically addressed, and it may have been that it was assumed that a “contravention” of M1’s rights under the Act occurred at each pay-day during the period covered by F1’s claim: if so, that is inconsistent with our analysis at paras. 32-33 above, under which M1’s rights only arise at the point that F1 is awarded arrears.  For the same reason, it is strongly arguable that on our analysis M1 is not at risk of losing out by the operation of the six-year cut off.

40.	However, despite those points, we believe that we should follow Preston and Milligan.  As the history of this and other mass equal pay litigation shows, there are obvious conveniences in male contingent claims being included in the proceedings from the start, even though it may be appropriate as a matter of case management to put them, or aspects of them, on the back burner pending determination of the primary claims.  There may also be room for dispute as to whether, even on our analysis, there is no prejudice to male claimants in being required to wait: that depends on the meaning of the phrase in section 2 (5) “arrears of remuneration … in respect of a time earlier than the arrears date”.  Even if such claims are technically premature in the sense of whether a cause of action has arisen, employment tribunals are empowered under section 2 (1A) of the 1970 Act to entertain claims for declaratory relief “where a dispute arises in relation to the effect of an equality clause”; and that would give a sufficient jurisdictional foundation for male contingent claims pending the point at which they may mature into claims for substantial relief.  

THE SEX DISCRIMINATION ACT CLAIM

THE FACTS

41.	The essential facts are not controversial and can be briefly stated as follows.

42.	In the South Tyneside cases the issues of whether (in short) the bonus payments to the comparators could be justified (see para. 3 above) was decided in favour of the female claimants in October 2005.    Following that decision – but while appeals were still pending – the Council and the Claimants’ solicitors negotiated terms of settlement for those employees in respect of whom no issue as to comparability arose (because their jobs and their comparators’ had been rated as equivalent under the old White Book arrangements) embodied in a “memorandum of understanding” dated 2 March 2006.  The essential terms of the memorandum of understanding are summarised at para. 16 of the Reasons as follows:

“Following the success by Mr Cross’ claimants in the first substantive hearing a memorandum of understanding was signed between the Council and Mr Cross dated 2 March 2006.  That memorandum of understanding is contained at pages 462 to 465 in the South Tyneside bundle.  In summary, the Council agreed to pay to all former White Book claimants “both male and female” (subject to limited exception set out in paragraph 5) the sum by way of back pay representing 75 % of the value of bonus payments paid to comparators for the relevant arrears period up to and including the 31 December 2006, and further to pay, representing future losses, a sum representing 60% of the bonuses in respect of the period forward from 1 January 2007 to 31 December 2009.  These payments were to be made in the form of a single lump sum payment by no later than the 30 April 2006 and were to be in full and final settlement inter alia of all equal pay claims (see paragraph 6).  That agreement was conditional upon 95% acceptances by Mr Cross’ claimants.  That condition was subsequently met.”

The memorandum of understanding was not of course itself a legally binding document:  settlement of individual claims could only be effected by compromise agreements made in each claim.

43.	As appear from the Judge’s summary, the original intention was that the settlement would be available to female and male claimants alike; and in a few of the men’s claims compromise agreements were duly concluded.   But before most had been settled the Council had a change of heart.  The evidence on this aspect which was before the Employment Judge took the form of a witness statement from Mr Brian Scott, the Council’s Head of Governance, which said merely this:

“The majority of claims were settled in accordance with the Memorandum but only a small number of male claims … were settled.”

Mr Scott was cross-examined on that witness statement but he was unwilling or unable to give any further detail about how the decision to withdraw the settlement offer to the male claimants was made; and the Judge commented (Reasons para. 16) that his evidence took matters “no further whatever”.

44.	In the case of Mr Ashcroft, the sole Middlesbrough claimant in respect of whom this point is said to arise, the precise sequence of events is unclear, but nothing turns on it.  As the Judge analysed it, Mr Ashcroft had a viable equal pay claim only for a period of three months, between 1 January and 31 March 2005, by reference to a Ms Himsworth.  The issue of the justifiability of the bonuses was decided in the case of the Middlesbrough female claimants in September 2005: that in practice disposed of the issue of “liability” where the relevant work had been rated as equivalent.  The amount payable to Ms. Himsworth was subsequently agreed, apparently without any discount, and incorporated in a Judgment issued by consent.  In due course “a schedule of claimants … entitled to a remedy” was produced; but Mr Ashcroft was omitted from it.  There was no evidence before the Judge as to the reason for that omission, but the hearing seems to have proceeded – no doubt realistically – on the basis that, as in the South Tyneside cases, the Council had decided not to settle with male claimants.  

THE LAW

45.	It was agreed between the parties that any claim by the male claimants that the denial to them of the benefit of the settlements was discriminatory could not be brought under the 1970 Act.  That is because the Act is concerned only with discrimination in relation to contractual terms and conditions of employment, and it is common ground that the compromise of a claim does not constitute such a term.  Any claim must accordingly be brought under the Sex Discrimination Act 1975.  We agree with that analysis, subject to two points:

(1)	The position may be different where a settlement contains in substance no element of compromise, so that what the employer is in fact doing is conceding the claimant’s right to the modified terms which she claims.  That was plainly not the case with the South Tyneside settlements, which were entered into at a time when appeals were pending and where the claimants accepted a substantial discount on the full value of their claims.  But it does appear to have been so in Mr Ashcroft’s case, because it seems that the “settlement” with Ms Himsworth was no more than the agreed calculation of the quantum of liabilities declared by the Tribunal: if that were so, the case would seem to be simply one of payment of arrears pursuant to an acknowledged term.  This seems to have been the point alluded to by the Judge at para. 3 of the Reasons, where he accepted that, unlike in the South Tyneside case, “Ms Himsworth may have received an agreed settlement as to the relevant breach of the equality clause, as opposed to a formal COT3 or compromise agreement”.  But the parties proceeded before us on the basis that Mr. Ashcroft’s claim was properly brought under the 1975 rather than the 1970 Act, and since nothing of substance seems to turn on the distinction we see no reason to go behind their agreement.

(2)	The distinction between discrimination with regard to pay due under the terms of the contract of employment and discrimination with regard to other forms of payment referable to the claimant’s position as an employee is a peculiarity of the UK legislation.  There is no corresponding distinction in EU law.  A single set of principles applies to all discrimination in relation to “pay”, which is broadly defined so as to cover all pecuniary benefits deriving from the employment relationship, whether contractual or not: see, e.g. R v Secretary of State for Employment, ex p. Seymour-Smith [1999] ICR 447, in which the European Court of Justice held that unfair dismissal compensation constituted pay.  We have no doubt that sums paid in settlement of a claim for equal pay would constitute pay for the purpose of the EU jurisprudence, even if the underlying claim were disputed and the sums were discounted accordingly.

46.	The relevant provisions of the 1975 Act are as follows.  Section 1 contains the definition of discrimination.  For present purposes we are concerned with section 1 (2), which provides (so far as relevant):

“(2)     In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if -

(a)     on the ground of her sex, he treats her less favourably than he treats or would treat a man, or
(b)     he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but—
(i)     which puts or would put women at a particular disadvantage when compared with men,
(ii)     which puts her at that disadvantage, and
(iii)    which he cannot show to be a proportionate means of achieving a legitimate aim.”

Section 5 (3) provides that for the purposes of “the comparison of the cases of persons of different sex” under section 1 (2) the comparison “must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.  Part II of the Act renders it unlawful for an employer to discriminate against a woman employed by him: the relevant provision for present purposes is section 6 (2) (b), which includes among the proscribed acts subjecting the woman to any “detriment”.  Section 2 (1) provides that references to discrimination against a woman apply equally to discrimination against a man.  

THE ISSUES

47.	On the face of it, the refusal to the Claimants in question of the settlement offered to the female claimants, and the consequential non-payment to them of the settlement sums, seems a plain case of discrimination.  They are being denied a benefit paid to women on the ground that they are men.  But the Councils submit otherwise.  The points made by Mr Bowers and Mr Jeans can be summarised as follows:

(a)	that the male claimants suffered no detriment;

(b)	that, if they did, it was not a detriment within the scope of the Act because it was suffered by them qua litigants rather than qua employees;

(c)	that the relevant circumstances of the male and female claimants were different, within the meaning of section 5 (3), because the natures of a “direct” and a “contingent” claim are different and the Councils were entitled to, and did, take a different view as to their respective viability;

(d)	that the difference of treatment was not on the ground of the male claimants’ sex because a female contingent claimant would have been treated in the same way;

(e)	that the Judge erred by attaching significance to the burden of proof; and 

(f)	that the Judge was wrong to characterise South Tyneside’s unwillingness to waive privilege as to the advice they had received as “evasive”.

We will consider those points in turn.

(a)	No Detriment

48.	Mr Jeans submitted in his skeleton argument that:

“If the male claimant has a valid claim under the Equal Pay Act he recovers under the Act and suffers no loss. … If on the other hand he has no claim under the Act he has no justified grievance in not being offered a settlement and hence no detriment.”

49.	We do not accept either element in that proposition.  As to the first, on our analysis of the Equal Pay Act claim, M1 has no claim unless and until F1 receives a payment by reference to the equality clause: by virtue of the settlement, no such payment will be received by F1, and so no entitlement on the part of M1 is triggered.  As to the second, it may appear attractive at first sight, but it does not stand up to examination.  Irrespective of the merits of the underlying claim (which in the case of a compromise will never be authoritatively established) the offer of a settlement, and payment under it, is self-evidently a benefit, and denial of that benefit is patently a detriment: that would be so even if the underlying case were hopeless.  Mr Jeans referred to the recent decision of the House of Lords in Derbyshire v St Helen’s Metropolitan Borough Council [2007] ICR 841, in which it was held that the worry or distress caused to a litigant by the legitimate actions of the opposing party could not properly be described as a detriment; but we cannot see that that has any application to the present case.

(b)	Detriment outside the scope of the Act

50.	Mr Jeans submitted in his skeleton argument:

“60.	Whether a settlement offer is made to a particular person or group is not an incident of the relationship of the employer and employee but of adversaries in litigation.  There is no obligation (absent victimisation) to deal consistently with litigants or classes of litigants.  An employer’s reasons for settling with some and not others are intrinsically privileged and non-justiciable.
61.		Section 6 SDA prohibits an employer “in relation to employment by him from “subjecting” an employee  to a “detriment” or refusing “access” to a “benefit”.  The meaning of “detriment” and “benefit” takes their colour from “in relation to employment”: see Shamoon v Chief Constable of the RUC [2003] ICR 337.  Not extending a settlement offer to Mr Ashcroft was not “subjecting” him to a “detriment” “in relation to employment” but an action taken in litigation.”

51.	We accept that for some purposes the distinction made by Mr Jeans may be valid: as he pointed out, it was referred to in the speech of Lord Hoffmann in Khan (see para. 59, at p. 1079).  But we do not believe that it has any relevance here.  If the employer had withheld pay from both M1 and F1 and both had made formal complaints, short of litigation, to which he had responded by paying one but not the other, that would unquestionably be discrimination within the scope of Part II.  Why should it be any different when they have got to the stage of issuing proceedings ?

(c)	Different circumstances

52.	It is obviously correct that the cases of the female and the male claimants in this litigation were different.  As the earlier part of this judgment demonstrates, the cases of the latter give rise to issues not present in the cases of the former.  Although we do not know the particulars of the advice given to South Tyneside, it is evident, and unsurprising, that the Council was advised, and reasonably believed on the basis of that advice, that it had better prospects of defending the men’s claims than the women’s.  And no doubt Middlesbrough had the same belief.  We thus have no difficulty in accepting that there is a difference between the men’s and the women’s claims and how they were assessed.  But the question is whether that is a material difference for the purpose of the Act.  We do not believe that it is.  If our conclusion on the substantive issue is correct the male claimants were entitled, had the cases proceeded to judgment, to payments equivalent to all payments awarded to the female claimants; and the withholding of such payments from them would be discriminatory.  The Councils cannot be permitted to rely on their (wrong) belief, however genuine or indeed reasonable, that such conduct was not discriminatory to legitimise its perpetuation in another form.

(d)	Female contingent claimant would have been treated the same

53.	Although, strictly speaking, there is no evidence as to the Councils’ reasons for excluding male contingent claimants from the settlement, we have already accepted that it is in practice a safe inference that they did so because they believed that it was at least arguable that piggyback claims were inadmissible in law – and thus that they had an arguable defence to such claims which was not available in the case of the primary (female) claimants.  That being so, it is no doubt fair to assume that they would have taken the same course if the primary claims had been by men and it was the women whose claims were contingent.  However, that course would have been discriminatory on the grounds of sex for precisely the same reason as the course taken in this case.  This is not therefore a situation where the act complained of is inherently gender-neutral and is only made discriminatory by the fact that a person of the opposite gender would have been treated more favourably.  Here the act complained of is inherently discriminatory.  It would have been no answer for the local authority in James to say – no doubt rightly – that it would have acted in the same way if the pensionable age had been 65 for women and 60 for men.

(e)	Burden of proof

54.	At para. 18 of his Reasons in the main cases the Employment Judge said this:

“I reject the respondent’s argument that the different chances of success constituted a material difference between F1 and M1.  I accept Mr Allen’s submission that a material difference cannot be one which is itself discriminatory on grounds of sex.  There was a clear sex based difference in treatment.  Females were to receive settlement offers.  Men were not, contrary to what had previously been agreed by the Council with Mr Cross.  In any event, the Tribunal has found that there was antecedent discrimination dating back to the date upon which F1 presented her claim which subsequently succeeded.  In my view it is proper to apply the thirteen stage test laid down in Igen Ltd-v-Wong [2005] IRLR page 258.  There are facts proved here and inferences there from which I could conclude that there was an act of discrimination.  The respondent has, in the event, totally failed to prove a non-discriminatory reason or explanation for the different treatment.  I go further than that.  I conclude on the balance of probabilities that at least a part but significant reason for the decision to settle future loss claims by women up to 31 December 2009 was that it was perceived that it would weaken the MCC’s chances of success in their equal pay claims by avoiding the Tribunal making a specific declaration as to any F1’s equality clause.  The Council’s decision to stop settling claims by exclusively male claimants was direct sex discrimination or, at the very least, the respondent has not proved that it was not.”
  
Similarly, though more briefly, at para. 4.3 of his Reasons in Mr Ashcroft’s case he said this:

“I reach a similar conclusion as in the South Tyneside cases and by a similar route.  In reality, the claimant Mr Ashcroft was denied access to a settlement because he was male.  That is an inevitable conclusion once it is decided that a defence in respect of the male contingent’s claim, for a period after the female comparator’s claim was presented to the Tribunal at least, cannot succeed.  The evidence satisfies the first part of the two stage test in Igen-v-Wong and no exculpatory explanation, satisfactory or otherwise, has been put forward by the respondent to explain such conduct.”

55.	Mr Bowers and Mr Jeans submitted that the Judge’s reference to the burden of proof in general, and to Igen Ltd. v Wong [2005] ICR 931 in particular, was an irrelevance.  The issue was one of pure law and there were no disputed facts requiring proof.  We agree.  It is a sign of the unhelpfully talismanic status that Igen v Wong has acquired that employment tribunals feel obliged to refer to it in virtually every discrimination case.  But the ritual obeisance paid by the Judge in the present case does not undermine his core reasoning.  In both the paragraphs quoted he expressed a conclusion of law which broadly corresponds to ours; and the subsequent reference to Igen v Wong is by way of sweep-up.  And even if the Judge did confuse himself, that does not ultimately matter: the issue being, as the Councils themselves assert, one of pure law, there is no difficulty about our supplying the correct reasoning for his (correct) conclusion.

(f)	“Evasiveness”

56.	At para. 16 of the Reasons the Judge described Mr Scott’s evidence, as described at para. 43 above, as exhibiting “at least an element of evasiveness”.  Mr Bowers protested that that was unfair: Mr Scott was doing no more than exercising the Council’s right to maintain privilege in the legal advice received.  

57.	There may be some basis for Mr Bowers’ objection.  The position of a witness called to give evidence about a decision taken on legal advice is delicate, and exactly where the line as to what is or is not privileged is to be drawn is not always easy to judge.  On the other hand, the Judge may be taken to have been aware of that; and he seems to have thought that even after due allowances were made Mr Scott was unnecessarily unhelpful.  But the real point is that, justified or not, the Judge’s observation has no impact on the decision that he had to make.  Even if Mr Scott had been more forthcoming, he was entirely justified in not revealing the content of the Council’s legal advice; and in any event, as we have observed, the basis on which the decision was made is adequately clear, whether or not the Council waived privilege.

CONCLUSION

58.	We have felt obliged to consider each of the particular points advanced by counsel: but in truth the issue is straightforward, and in our view not difficult to decide in the light of our conclusion on the claim under the 1970 Act.  In circumstances where, as we have held, the Councils would have been obliged, had the claims proceeded to a decision, to pay the same sums (both by way of arrears and for the future) to male and female claimants, it would be remarkable if they were entitled to discriminate between them in any offer to compromise the selfsame claims.

DISPOSAL

59.	We thus dismiss all four appeals before us and allow the cross-appeal, so that the Claimants may claim arrears for the full period that such arrears are awarded to their comparators.