Glasgow - Court of Session
Here is Action 4 Equality Scotland's note of the decision reached on Thursday at the Court of Session appeal hearing in Edinburgh.
The note is not an official court document, but I think it gives a very fair and factual account of what was said by the judges in delivering their unambiguous verdict which resulted, of course, in Glasgow City Council's case being thrown out on its ear.
If you ask me, the City Council's strategy amounted to 'teaching your Granny how to suck eggs' in the sense that Glasgow was, rather unwisely if you ask me, telling the Court of Session that it didn't know what it was talking about regarding the law on equal pay.
An approach which blew up spectacularly in the council's face and resulted in Glasgow's case being rejected in the most comprehensive way possible.
Now I'm a very reasonable person and, by and large, I'm not in favour of sacking people when they make mistakes, but Glasgow City Council have now 'bet the house twice' at the Court of Session and lost - big time.
Surely it's time for Glasgow to ditch the bankrupt strategy that got the council into this mess in the first place by bringing in some fresh thinking or new blood - or both - with the aim of finally ending this 10-year-old dispute.
As we head into a New Year Scotland's largest council needs to raise its game and rise to the challenge.
If you ask me, the City Council's strategy amounted to 'teaching your Granny how to suck eggs' in the sense that Glasgow was, rather unwisely if you ask me, telling the Court of Session that it didn't know what it was talking about regarding the law on equal pay.
An approach which blew up spectacularly in the council's face and resulted in Glasgow's case being rejected in the most comprehensive way possible.
Now I'm a very reasonable person and, by and large, I'm not in favour of sacking people when they make mistakes, but Glasgow City Council have now 'bet the house twice' at the Court of Session and lost - big time.
Surely it's time for Glasgow to ditch the bankrupt strategy that got the council into this mess in the first place by bringing in some fresh thinking or new blood - or both - with the aim of finally ending this 10-year-old dispute.
As we head into a New Year Scotland's largest council needs to raise its game and rise to the challenge.
Court of Session Decision
We do not accept that this case raises arguable points of law of general public importance such as merit determination by the UK Supreme Court at this time.
It seems to us that the case is highly fact specific.
To a considerable extent, it is difficult to identify any real point of law in the grounds of appeal, which largely seem to address the question of this court’s understanding of the tribunal’s decision on a highly selective basis rather than looking at the assessment in its whole context.
Many of the grounds themselves seem to require a gloss to be placed on the opinion of the Inner House. On the specific points said, in the permission to appeal stage, to create a point of law of public importance:
(i) the argument contained in the 1st part of the permission to appeal section does not seem to accord with the basis upon which the appellant argued the case
(ii) it is an incorrect reading of the opinion to suggest that the Inner House suggested some novel standard of proof
(iii) the court did not say that the section 1(5) test could only be met by leading expert evidence. The observations of the court on this matter must be read in the context of the tribunal itself stating that it did not have the necessary expertise to determine the issue. From what has been advanced to us it seems that the nub of this argument relates to a dispute as to the way in which the Inner House interpreted what the tribunal said upon this matter which does not seem suitable for the UK Supreme Court
(iv) we cannot see this point as relating to the construction of the statute rather than simply to the factual situation before the court
(v) this is not insisted on: it is in any event a point of procedure not of law
(vi) we do not think any arguable point of law arises having regard to the terms of section 2A(2A)
(vii) Given the extent to which this case is fact specific we do not consider this point to be relevant
(viii) and (ix) The fact that significant sums may be involved does not create a point of law nor, of itself, does it create an issue of public importance. The latter suggests an issue which affects the public at large rather than one affecting only the interests of individual parties.
(i) the argument contained in the 1st part of the permission to appeal section does not seem to accord with the basis upon which the appellant argued the case
(ii) it is an incorrect reading of the opinion to suggest that the Inner House suggested some novel standard of proof
(iii) the court did not say that the section 1(5) test could only be met by leading expert evidence. The observations of the court on this matter must be read in the context of the tribunal itself stating that it did not have the necessary expertise to determine the issue. From what has been advanced to us it seems that the nub of this argument relates to a dispute as to the way in which the Inner House interpreted what the tribunal said upon this matter which does not seem suitable for the UK Supreme Court
(iv) we cannot see this point as relating to the construction of the statute rather than simply to the factual situation before the court
(v) this is not insisted on: it is in any event a point of procedure not of law
(vi) we do not think any arguable point of law arises having regard to the terms of section 2A(2A)
(vii) Given the extent to which this case is fact specific we do not consider this point to be relevant
(viii) and (ix) The fact that significant sums may be involved does not create a point of law nor, of itself, does it create an issue of public importance. The latter suggests an issue which affects the public at large rather than one affecting only the interests of individual parties.
Glasgow - Court of Session (13/10/17)
Here's the submission made by Glasgow City Council which seeks 'leave to appeal' the landmark decision of the Court of Session, Scotland's highest civil court, which judged the council's WPBR pay arrangements unfit for purpose.
The detailed grounds of appeal are broken down into a series of sub-headings which I have summarised below for easy reference.
Onus of Proof
Standard of Proof
Evaluation of evidence
The need for expert evidence
The "novelty" of Glasgow's JES scheme
Failure to remit
Misinterpretation of the Equal Pay Act 1970
My own take on GCC's application is that the council is arguing the Court of Session judgment should be overturned because:
- the judges misapplied the law in relation to the onus of proof and standard of proof
- the judges hearing the case failed to evaluate all of the evidence fully and properly
- the judges were wrong to criticise the lack of expert, independent JES evidence
- the judges were wrong to regard the WPBR scheme as 'novel and untested'
- the judges should have sent the case back to the Employment Tribunals
- the judges don't know what they're talking about in respect of EPA 1970
So I really can't see GCC getting too far with with their latest submission which effectively argues that all three of the senior judges involved managed to misinterpret the Equal Pay Act 1970.
The GCC submission also raises wider issues at Paragraphs 3.8 and 3.9 regarding the likely cost of delivering equal pay and the length of time it may take to introduce a new Job Evaluation Scheme - neither of which are valid points of law, if you ask me.
But as I've explained in an earlier post the cost of equal pay represent a 'loss of income' to thousands of low paid women claimants who have been paid so much less than their male comparators for the past 10 years.
The A4ES legal team is now in the process of finalising a detailed response to GCC's application and I hope to share this on the blog site very soon.
So watch this space.
Form of application for permission to appeal to the Supreme Court
IN THE COURT OF SESSION
APPLICATION
for
PERMISSION TO APPEAL TO THE SUPREME COURT
under section 40 of the Court of Session Act 1988
by
Glasgow City Council, City Chambers, George Square, Glasgow, G2 1DU
Against
A decision of the Inner House
IN THE COURT OF SESSION
APPLICATION
for
PERMISSION TO APPEAL TO THE SUPREME COURT
under section 40 of the Court of Session Act 1988
by
Glasgow City Council, City Chambers, George Square, Glasgow, G2 1DU
Against
A decision of the Inner House
Applicant
1. On 18 August 2017 the Inner House allowed the claimant appeals (XA71/16 and XA72/16), quashed the judgment of the Employment Tribunal dated 9 December 2013 and the judgment of the Employment Appeal Tribunal dated 15 March 2016, and remitted to the Employment Tribunal to consider the question of equal value.
2 1.1
GROUNDS OF APPEAL
Ground 1: Onus of Proof
Application of section 1(5), Equal Pay Act 1970
(1) The Inner House erred in holding that the Employment Tribunal (“ET”) misapplied the onus of proof as laid down in si (5) Equal Pay Act 1970. The ET properly directed itself as to the general requirements of si (5) and proceeded on the basis that the onus rested on the Respondent and Potential Appellant (“Respondent”). It was for the ET alone, as the fact-finding tribunal, to consider all of the evidence presented to it and to determine whether the Respondent had discharged the onus in relation to si (5) (which it found that it had). This was not a case which the ET could or should have decided on the basis that the Respondent had not discharged the burden of proof placed on them by s. 1(5). There was no error of law which permitted or required the Inner House to hold otherwise [Opinion of the Inner House, paragraph 56 “IH 56”] and it was an error of law for them to do so.
Ground 1: Onus of Proof
Application of section 1(5), Equal Pay Act 1970
(1) The Inner House erred in holding that the Employment Tribunal (“ET”) misapplied the onus of proof as laid down in si (5) Equal Pay Act 1970. The ET properly directed itself as to the general requirements of si (5) and proceeded on the basis that the onus rested on the Respondent and Potential Appellant (“Respondent”). It was for the ET alone, as the fact-finding tribunal, to consider all of the evidence presented to it and to determine whether the Respondent had discharged the onus in relation to si (5) (which it found that it had). This was not a case which the ET could or should have decided on the basis that the Respondent had not discharged the burden of proof placed on them by s. 1(5). There was no error of law which permitted or required the Inner House to hold otherwise [Opinion of the Inner House, paragraph 56 “IH 56”] and it was an error of law for them to do so.
1.2 Applying a higher standard of proof
(2) Further or in the alternative, the Inner House erred in law to the extent that its reasoning imports a higher standard of proof than the balance of probabilities. It refers to the alleged requirement of “rigorous testing” and “rigorous analysis” which connote something more onerous than the balance of probabilities. It is in law enough for the ET to establish on the evidence and submissions presented before it by the parties that it meets that standard that a scheme is prima facie valid when tested against the agreed si(5) factors. There is a tipping point or evidential onus that then renders it incumbent on the Claimants to produce evidence and arguments which undermine its validity. The ET and the EAT adopted this approach and were correct to do so. The Inner House erred in law when it rejected this approach [IH 41].
Ground 2: Evaluation of evidence
Ground 2: Evaluation of evidence
2.1 Dr Watson
(3) The Inner House erred in holding that the ET was not entitled to make a finding on the judgements exercised by Dr Watson with respect to job evaluation having heard his evidence [IH 53], contrary to the views taken by the ET and EAT below. The Inner House cites in this respect the Employment tribunal Judgement [“ETJ”] paragraphs 442, 548, 666, 672 and 713 in support of its reasoning. In each example, the ET was on a fair reading of the Judgment merely highlighting the fact that expert evidence called by either side would have been beneficial in relation to some of the technical matters that it was required to consider (and no more). However, absent that expert evidence, the ET had to consider what evidence was actually before it and reach a judgment thereon; it did consider all of the evidence- and the submissions made (and not made) by parties in relation to that evidence - before determining whether it could rule on technical matters and, if so, how it would rule. The ET had to reach a decision on the evidence before it and did so, having directed itself properly on the burden of proof.
(4) Further or in the alternative, the Inner House erred in law in its approach to the ET’s consideration of Dr Watson’s evidence at ETJ 380. This was clearly not a case where the Respondent (as the Inner House put it in IH 41) “merely placed a scheme before the ET and [left] it to the claimants to pick holes and deficiencies in it” or merely “asserted” what the position was. In fact, the ET was entitled to accept and attach appropriate weight to Dr Watson’s evidence (and to that of Mr Blair who worked alongside Dr Watson). The ET heard the totality of Dr Watson’s evidence over seven days, and it considered carefully whether that evidence was challenged or unchallenged. It accepted his evidence and that he was a man of skill and experience in the field and the ET was entitled to do so. The Inner House erred when holding that [IH 54], as a matter of law, the ET was not entitled to answer the question of validity based on Dr Watson’s (amongst other) evidence.
The need for expert evidence
(5) The Inner House erred in criticising the ET in its approach to expert evidence. As to the reasoning of the Inner House at IH 52-54, in so far as the Inner House relies on ETJ 376-380, the ET correctly identified the question of the validity of the scheme at ETJ 376. It comments on the absence of expert evidence at ETJ 377-379. On any fair reading of the judgement, the ET is alive to the difficulty that it faced in the absence of expert evidence. The ET was not however saying that it was unable to answer the question, because plainly it felt that it could legitimately do so (and it explained why it felt it could do so). The ET was simply expressing the difficulty that the absence of expert evidence had presented for it (and did so in the context when in pre-hearing case
(4) Further or in the alternative, the Inner House erred in law in its approach to the ET’s consideration of Dr Watson’s evidence at ETJ 380. This was clearly not a case where the Respondent (as the Inner House put it in IH 41) “merely placed a scheme before the ET and [left] it to the claimants to pick holes and deficiencies in it” or merely “asserted” what the position was. In fact, the ET was entitled to accept and attach appropriate weight to Dr Watson’s evidence (and to that of Mr Blair who worked alongside Dr Watson). The ET heard the totality of Dr Watson’s evidence over seven days, and it considered carefully whether that evidence was challenged or unchallenged. It accepted his evidence and that he was a man of skill and experience in the field and the ET was entitled to do so. The Inner House erred when holding that [IH 54], as a matter of law, the ET was not entitled to answer the question of validity based on Dr Watson’s (amongst other) evidence.
The need for expert evidence
(5) The Inner House erred in criticising the ET in its approach to expert evidence. As to the reasoning of the Inner House at IH 52-54, in so far as the Inner House relies on ETJ 376-380, the ET correctly identified the question of the validity of the scheme at ETJ 376. It comments on the absence of expert evidence at ETJ 377-379. On any fair reading of the judgement, the ET is alive to the difficulty that it faced in the absence of expert evidence. The ET was not however saying that it was unable to answer the question, because plainly it felt that it could legitimately do so (and it explained why it felt it could do so). The ET was simply expressing the difficulty that the absence of expert evidence had presented for it (and did so in the context when in pre-hearing case
2.2
management discussions the ET had pressed the parties as to whether they intended to call expert evidence). However this difficulty was (the ET decided as it was entitled to do so) not insurmountable and the Inner House erred in law in holding that it had found that it was, and on this basis intervening to overturn the decision reached by the ET. It was for the ET to consider all of the non-expert evidence before it and to consider as it did properly, firstly, whether it was entitled on that evidence to answer the question, and secondly, if so, what was that answer.
(6) As to the paragraphs relied on by the Inner House for its conclusion, more specifically
ETJ 442 - the ET said that it had difficulty in the abstract However, voluminous evidence, which was relevant to the issues, was before it. It went on to consider this evidence and reach a conclusion, which it was entitled to do having referred to the burden of proof correctly on several occasions. [ETJ 443-448].
ETJ 548 - this has to be read in the proper context of the preceding and following paragraphs at [ETJ 538-556] rather than being taken alone.
ETJ 666 - this does not (with respect) illustrate the point made by the Inner House at all.
ETJ 672 - here the ET states no more than that expert evidence would have been permitted if sought to be admitted. The Inner House is wrong to suggest that expert evidence was elevated at any point by the ET to a requirement. In any event, this observation was made in the context of considering s2A (2A) on reasonable suspicion, and not about the validity ofthe scheme itselfunder si(5). ETJ 713 - again this is merely a factual statement that neither side called an expert to give evidence. Importantly the ET does record that the Allocation Tool Kit was tested at the hearing as the ET say later in that same paragraph [ETJ 713]. In fact it was tested over several days of evidence.
2.3 The “novelty” of the scheme
(7) Further or in the alternative, in so far as the Inner House placed emphasis on the fact that the ET had seen the scheme as “novel and untested”, it failed to have regard to the fact that the ET went on in the same paragraph (indeed the next sentence) to say that the scheme had been tested before it [ETJ 713]; the ET in fact had very extensive evidence before it so as to test the scheme against the various criteria which the parties agreed as a matter of law had to be met. Further, in so far as “novelty” was an issue at all in the case, the ET was entitled to take into account that Dr Watson (whom they found a reliable witness after he had been subjected to extensive cross examination) had used the techniques in the Glasgow scheme (including a form ofthe Working Context and Demand figures) when he worked at Hay which is (as the evidence showed) the market leading job evaluation system [ETJ 380]. Further, the Inner House wholly lost sight of the fact that the Glasgow scheme was based on the values in the long established GLPC scheme (which was agreed as a collective agreement by unions and management), On (8) this basis, the ET were entitled to draw “the inference that the technique of using two points scores to produce two elements in the pay package is a legitimate approach to job evaluation” [ETJ 380].
ETJ 442 - the ET said that it had difficulty in the abstract However, voluminous evidence, which was relevant to the issues, was before it. It went on to consider this evidence and reach a conclusion, which it was entitled to do having referred to the burden of proof correctly on several occasions. [ETJ 443-448].
ETJ 548 - this has to be read in the proper context of the preceding and following paragraphs at [ETJ 538-556] rather than being taken alone.
ETJ 666 - this does not (with respect) illustrate the point made by the Inner House at all.
ETJ 672 - here the ET states no more than that expert evidence would have been permitted if sought to be admitted. The Inner House is wrong to suggest that expert evidence was elevated at any point by the ET to a requirement. In any event, this observation was made in the context of considering s2A (2A) on reasonable suspicion, and not about the validity ofthe scheme itselfunder si(5). ETJ 713 - again this is merely a factual statement that neither side called an expert to give evidence. Importantly the ET does record that the Allocation Tool Kit was tested at the hearing as the ET say later in that same paragraph [ETJ 713]. In fact it was tested over several days of evidence.
2.3 The “novelty” of the scheme
(7) Further or in the alternative, in so far as the Inner House placed emphasis on the fact that the ET had seen the scheme as “novel and untested”, it failed to have regard to the fact that the ET went on in the same paragraph (indeed the next sentence) to say that the scheme had been tested before it [ETJ 713]; the ET in fact had very extensive evidence before it so as to test the scheme against the various criteria which the parties agreed as a matter of law had to be met. Further, in so far as “novelty” was an issue at all in the case, the ET was entitled to take into account that Dr Watson (whom they found a reliable witness after he had been subjected to extensive cross examination) had used the techniques in the Glasgow scheme (including a form ofthe Working Context and Demand figures) when he worked at Hay which is (as the evidence showed) the market leading job evaluation system [ETJ 380]. Further, the Inner House wholly lost sight of the fact that the Glasgow scheme was based on the values in the long established GLPC scheme (which was agreed as a collective agreement by unions and management), On (8) this basis, the ET were entitled to draw “the inference that the technique of using two points scores to produce two elements in the pay package is a legitimate approach to job evaluation” [ETJ 380].
Further, whilst acknowledging the point made by the Inner House that “less evidence will re required to discharge the burden of proof of compliance” with a scheme “has been considered, tested, analysed and found to be compliant [IH 43], the issues on which it is said the ET might have asked questions of the untested scheme, identified by the Inner House at the end of its paragraph 52, are in truth irrelevant to the scheme validity issues under si(5) or, to the extent they were relevant, were answered to the satisfaction of ET.
Ground 3: Failure to remit
(9) Esto the Inner House was correct in detecting an error of law on the burden of proof and/or on expert evidence, the appropriate course was for them to remit to the ET for further consideration. In the alternative
Ground 4: Misinterpretation of Equal Pay Act 1970. s. 2A12A)
4.1 Reasonable grounds to suspect
(10) The Inner House erred by interfering with the ET’s decision on the facts. The ET properly directed itself that s2A (2A) gave it very wide scope to consider reasonable grounds for suspicion and that the onus, although resting on the Claimants, gave rise to a relatively low threshold. [ETJ 90-104, especially 98], It was alive to the fact that it imposed a lesser burden than balance of probabilities [ETJ 722], Contrary to the holding of the Inner House [at IH 58], the ET did not require as a matter of law that the Claimants lead expert evidence to give rise to reasonable suspicion. On a fair reading of the ET Judgment as a whole, the ET concluded that some of the Claimants’ criticisms may have benefited from (but not that they required, in order to be established) expert evidence. The Inner House also does a disservice to the ET by criticising its references in the Judgment to a need for cogent evidence. The ET was not on a fair reading of the decision - contrary to the interpretation of the Inner House - requiring cogent evidence in the sense of imposing a higher legal onus than is required by the words of the statute. Rather, in its various references to cogency, the ET was carefully carrying out the assessment of evidence that it is required to do as a fact-finding tribunal. The various references to cogent evidence (or the absence of it) have to be viewed in their context, which usually related to sufficiency when set against contrary evidence : viz, extending conclusions beyond individual samples [ETJ 102 and 722], that those charged with allocating simply ignored important points [ETJ 353], there being nothing to set against the body of evidence of those who carried out evaluations [ETJ 470], the competence of Dr Watson to carry out role profile work [ETJ paragraph 559], the weighing of evidence about allocation and that no submission was made in any event on the issue of work setting [ETJ paragraph 600], that there was no attempt by claimants to show detail in support of their attack on the scoring of gardeners [ETJ 693], and that bare statistics alone did not make out the gender bias contended by the claimants [ETJ 696].
(11) Further and separately, in relation to s. 2A(2A) Equal Pay Act 1970 [IH 57-60], the Inner House erred in law in interfering with the judgment of the ET by deciding (not having heard the evidence) [at IH 57] that there was ample material on which a reasonable tribunal might conclude that it had reasonable grounds for suspecting that the job evaluation scheme could not be relied upon. The reasoning of the Inner House relies solely upon the novelty of the separation of job evaluation grade and the Working Context and Demand features (WCD) and the use of the Allocation Tool Kit. The Inner House concludes that the novelty of a scheme with these features —without anything more - of itself amounts to ample material to allow an ET to find reasonable grounds for suspecting.
(12) There was thus no basis for the Inner House to interfere with the informed judgment of the ET on s2A(2A). Esto there was, the proper course was to remit the matter to the ET for further consideration.
Ground 4: Misinterpretation of Equal Pay Act 1970. s. 2A12A)
4.1 Reasonable grounds to suspect
(10) The Inner House erred by interfering with the ET’s decision on the facts. The ET properly directed itself that s2A (2A) gave it very wide scope to consider reasonable grounds for suspicion and that the onus, although resting on the Claimants, gave rise to a relatively low threshold. [ETJ 90-104, especially 98], It was alive to the fact that it imposed a lesser burden than balance of probabilities [ETJ 722], Contrary to the holding of the Inner House [at IH 58], the ET did not require as a matter of law that the Claimants lead expert evidence to give rise to reasonable suspicion. On a fair reading of the ET Judgment as a whole, the ET concluded that some of the Claimants’ criticisms may have benefited from (but not that they required, in order to be established) expert evidence. The Inner House also does a disservice to the ET by criticising its references in the Judgment to a need for cogent evidence. The ET was not on a fair reading of the decision - contrary to the interpretation of the Inner House - requiring cogent evidence in the sense of imposing a higher legal onus than is required by the words of the statute. Rather, in its various references to cogency, the ET was carefully carrying out the assessment of evidence that it is required to do as a fact-finding tribunal. The various references to cogent evidence (or the absence of it) have to be viewed in their context, which usually related to sufficiency when set against contrary evidence : viz, extending conclusions beyond individual samples [ETJ 102 and 722], that those charged with allocating simply ignored important points [ETJ 353], there being nothing to set against the body of evidence of those who carried out evaluations [ETJ 470], the competence of Dr Watson to carry out role profile work [ETJ paragraph 559], the weighing of evidence about allocation and that no submission was made in any event on the issue of work setting [ETJ paragraph 600], that there was no attempt by claimants to show detail in support of their attack on the scoring of gardeners [ETJ 693], and that bare statistics alone did not make out the gender bias contended by the claimants [ETJ 696].
(11) Further and separately, in relation to s. 2A(2A) Equal Pay Act 1970 [IH 57-60], the Inner House erred in law in interfering with the judgment of the ET by deciding (not having heard the evidence) [at IH 57] that there was ample material on which a reasonable tribunal might conclude that it had reasonable grounds for suspecting that the job evaluation scheme could not be relied upon. The reasoning of the Inner House relies solely upon the novelty of the separation of job evaluation grade and the Working Context and Demand features (WCD) and the use of the Allocation Tool Kit. The Inner House concludes that the novelty of a scheme with these features —without anything more - of itself amounts to ample material to allow an ET to find reasonable grounds for suspecting.
(12) There was thus no basis for the Inner House to interfere with the informed judgment of the ET on s2A(2A). Esto there was, the proper course was to remit the matter to the ET for further consideration.
PERMISSION TO APPEAL
3. The appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time because:
1.The Inner House has decided that section 1(5) of the Equal Pay Act 1970 means that an employer who seeks to rely on a job evaluation study (j.e.s) as a defence to an equal value claim must do more than present to the Employment Tribunal (“ET”) a scheme that is prima facie valid and compliant with what the subsection requires. The employer must, in order to discharge the burden of proof that is placed on him by statute, lead positive evidence to justify the scheme against the relevant factors. [IH 41]. The Inner House rejected as wrong the submission that the employer could establish the test was met by showing the j.e.s. was prima facie valid and compliant, and then by relying on the absence of evidence led by the claimant to the contrary. That is a question of choosing between different possible constructions of the statutory provision, and it raises an arguable point of law. [Grounds of Appeal, grounds 1.1 and 1.2]
2. The Inner House held [IH 41] that in order for a j.e.s. to comply with section 1(5), it requires to be “rigorously tested” against the factors listed in section 1(5). The Respondent and Potential Appellant (“Respondent”) maintains that the reference to “rigorously tested” connotes a gloss on the statutory wording and is wrong in law, as it connotes a standard that is more onerous than the “balance of probabilities” which is the right approach. That is a question of choosing between different possible constructions of the statutory provision, and it raises an arguable point of law. (Grounds of Appeal, ground 1.2)
3. The Inner House held [IH 53] that the ET was not entitled to rely on the judgements exercised by Dr Watson in coming to its conclusion that the Respondent’s j.e.s. met the requirementsofsection1(5). ItwasfortheETtomakeitsdecisiononthebasisofthe evidence before it, and it was entitled to place the reliance it did on Dr Watson’s evidence. The Inner House was wrong to say that the section1(5)test required the Respondent to adduce independent expert evidence. The Inner House erred in holding [IH 54] that as a matter of law the ET was not entitled to find the j.e.s. was legitimate on the basis of Dr Watson’s evidence. Whether the Inner House was right to interfere with the fact-finding jurisdiction of the ET (and the related question whether it was right to find the Employment Appeal Tribunal (“EAT”) had been in error in upholding the decision of the ET on this point) raises an arguable point of law. (Grounds of Appeal, grounds 2.1 and 2.2).
4. The Inner House was wrong to say [IH 43] that because the ET had seen the Respondent’s j.e.s. as “bespoke, novel and untested” that was a factor which required more evidence to discharge the burden of proof that was on the Respondent by operation of section 1(5). The Inner House was wrong to construe the statute as requiring more evidence because of the special features of the scheme in question. That is an issue that goes to the proper construction of the statute, and as such raises an arguable point of law. (Grounds of Appeal, ground 2.3)
5. The Inner House, having identified material errors of law in the decision of the ET should haveremittedthemattertotheETtobereconsidered,inthelightofthefindingsmade. It should not have simply reversed the decisions of the ET and the EAT. (Grounds of Appeal, ground 3).
6. The Inner House erred in law in construing section 2A(2A) of the Equal Pay Act 1970 [IH 57-60] as requiring the ET to have found that there was material giving reasonable grounds for suspecting that the j.e.s.could not be relied upon. The Inner House erredin law in overturning the ET’s decision on what was a decision properly made on the facts
before it. Esto the ET had taken the wrong approach to the interpretation of s.2A(2A), the Inner House should have remitted the issue of whether there were reasonable grounds for suspicion to the ET. (Grounds of Appeal, grounds 4.11 and 4.12).
7. Although section 1(5) of the Equal Pay Act 1970 has been repealed, the substantive law remainsthesameundertheEqualityAct2010 (section
80(5)andsection131(5)(6)(9)). SimilarlythesubstanceofEqualPayAct1970section 2A(2A) is found in the Equality Act 2010 section 131(6). Thus the interpretations given to sections 1(5) and 2A(2A) are of continuing importance in defining the scope and application of equal pay law.
8. The appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court. The Inner House decision directly affects 6000- 7000 claims. The overwhelming majority of these Claimants seek compensation from April 2006 to date. The Respondent anticipates that the aggregate amount of compensation will exceed £100m albeit a more reliable estimate will have to await specification of the Claimants’ equal value claims. The public estimate of the representatives of the largest Claimant group is that as a consequence of this decision the Claimants are entitled to compensation that could reach £500 million.
9. The job evaluation scheme considered by the Inner House was implemented by the Respondent with effect from 1 April 2006 pursuant to its obligations under the National Agreement on Pay and Conditions of Service, a collective bargain agreed between management and unions. That Agreement (known as “the Red Book”) required local government employers to integrate former APT &C staff and former Manual Workers into a single status workforce via a common job evaluation scheme. If the InnerHouse decision stands, the grading of the entire single status job population of over 25,000 employees may be undermined, and a replacement j.e.s may need to be established. That process is conservatively anticipated to take between two and three years and will generate enormous unnecessary cost and uncertainty amongst and beyond the Claimant group.
IN RESPECT WHEREOF
(Signed) Solicitor Advocate for applicant
7. Although section 1(5) of the Equal Pay Act 1970 has been repealed, the substantive law remainsthesameundertheEqualityAct2010 (section
80(5)andsection131(5)(6)(9)). SimilarlythesubstanceofEqualPayAct1970section 2A(2A) is found in the Equality Act 2010 section 131(6). Thus the interpretations given to sections 1(5) and 2A(2A) are of continuing importance in defining the scope and application of equal pay law.
8. The appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court. The Inner House decision directly affects 6000- 7000 claims. The overwhelming majority of these Claimants seek compensation from April 2006 to date. The Respondent anticipates that the aggregate amount of compensation will exceed £100m albeit a more reliable estimate will have to await specification of the Claimants’ equal value claims. The public estimate of the representatives of the largest Claimant group is that as a consequence of this decision the Claimants are entitled to compensation that could reach £500 million.
9. The job evaluation scheme considered by the Inner House was implemented by the Respondent with effect from 1 April 2006 pursuant to its obligations under the National Agreement on Pay and Conditions of Service, a collective bargain agreed between management and unions. That Agreement (known as “the Red Book”) required local government employers to integrate former APT &C staff and former Manual Workers into a single status workforce via a common job evaluation scheme. If the InnerHouse decision stands, the grading of the entire single status job population of over 25,000 employees may be undermined, and a replacement j.e.s may need to be established. That process is conservatively anticipated to take between two and three years and will generate enormous unnecessary cost and uncertainty amongst and beyond the Claimant group.
IN RESPECT WHEREOF
(Signed) Solicitor Advocate for applicant
Glasgow - Court of Session (09/10/17)
The A4ES legal team is meeting this week to finalise its response to Glasgow City Council's application seeking leave to appeal the Court of Session decision which judged the council's WPBR pay scheme to be 'unfit for purpose'.
I will share the A4ES 'answers' once they have been lodged and come to think of it I will also publish Glasgow's application so that readers can see for themselves what the City Council is saying in support of a further appeal to the UK Supreme Court.
Now I am optimistic about seeing off GCC's application for leave to appeal because in my view the Council's case is very weak - in fact it's just a rehash of the unsuccessful arguments Glasgow made at the original Court of Session hearing.
For example, the City Council raises the cost implications of the judgment, but I fail to see how that can have any bearing on the outcome since the cost represents 'loss of income' to thousands of low paid women claimants who have been paid so much less than their male comparators for the past 10 years.
So setting aside the enormous political problems an appeal to the UK Supreme Court would present to an SNP led Glasgow, I expect the City Council to lose its application although, frustratingly, that is not necessarily the end of the matter.
Because the City Council could then make a further application direct to the UK Supreme Court, despite having repeatedly pledged to end the litigation and resolve all the outstanding equal pay cases by negotiation.
We shall see what happens and I understand that we can expect to hear the outcome of GCC's application next month, i.e. sometime in November.
A4ES and Unison are working together on this issue, by the way, which is good news for all the claimants, but the ridiculous GMB is not involved because the union was not part of the original appeal to the Court of Session.
