Glasgow - Equal Pay Update

A number of readers have asked what is happening with the Court of Session and Glasgow's application seeking leave to appeal the landmark decision about the City Council's WPBR pay scheme to the UK Supreme Court

Well the good news is that a date has now been set to hear Glasgow's application and the details are as follows:

Date: Thursday 21 December 2017

Time: 10am onwards

Venue: Court of Session, Parliament Square, Edinburgh EH1 1RQ.

Now I intend to go along on the 21st December and I don't think the hearing should be terribly long, because the judges have all the written submissions in advance and the differences of opinion are very clear.

The hearing is open to the public, so if any A4ES claimants from Glasgow would like to join in, then drop me a note and maybe we can meet up on the day.

As I've explained on the blog site previously, the GMB union is not involved in this hearing because it has never been part of the fight against the WPBR - only A4ES clients and Unison members will be represented.

Glasgow - Court of Session (26/10/17)

Here are the 'answers' prepared by Jonathan Mitchell QC on behalf of the equal pay claimants represented by Action 4 Equality Scotland (A4ES) in the ongoing legal battle with Glasgow City Council.

As regular readers know, GCC is 'seeking leave to appeal' the unanimous decision of the Court of Session which found the City Council's WPBR pay scheme to be 'unfit for purpose'.

Jonathan Mitchell QC represented the interests of A4ES clients at the original Court of Session appeal hearing which resulted in the landmark judgment against Glasgow City Council and, as explained in an previous post, Addleshaw Goddard represent A4ES clients in any equal pay issues which go before the courts, having taken over this role from HBJ Gateley.

The 'answers' respond to Glasgow City Council's grounds of appeal and I have summarised my own take on the document below - GCC's application is also included for easy reference and completeness.

Onus of Proof
Glasgow's case in 'unintelligible', the judges were quite entitled to come to their decision based on the facts and circumstances of this particular case

Evaluation of evidence
The judges did evaluate all the evidence and arguments properly pinpointing, for example, the 'unique nature' of Glasgow's WPBR and its only very loose or distant connection with the more established GLPC job evaluation (JE) scheme

Failure to remit
The council is complaining 'after the event' and the judges were quite entitled to decide the WPBR was 'unfit for purpose' since referring the case back to the Employment Tribunal would have started the legal process all over again.

Misinterpretation of the Equal Pay Action 1970
The council is complaining about the outcome of the case instead of raising serious points of law and in any event these issues were dealt with at the original Court of Session appeal hearing.

Jonathan Mitchell QC goes on to answer some of these points in more detail under the paragraphs headed 'PERMISSION TO APPEAL' and makes the very good point towards the end of his submission that the high cost of the settlement reflects the fact that Glasgow City Council only has itself to blame - having fought the case 'tooth and nail' in the courts for the past 10 years.

As I've emphasised on the blog site the highest of the settlement represents 'lost income' to thousands of low paid women workers who been cheated and robbed of their rights to equal pay for years - and who have been retiring on much poorer pensions and pension lump sums than they male colleagues since 2007.

IN THE COURT OF SESSION

ANSWERS

For

Julie Armstrong and Others (“The HBJ Claimants”), c/o Addleshaw Goddard LLP,

Exchange Tower, 19 Canning Street, Edinburgh EH3 8EH

Application for permission to appeal to the Supreme Court

Glasgow City Council, City Chambers, George Square, Glasgow G2 1DU

Against

A decision of the Inner House dated 18 August 2017

ANSWERS TO THE GROUNDS OF APPEAL

Admitted, under explanation that these answers which are lodged in XA71/16 are effectively identical to those in XA72/16 for the Unison Claimants, in which the permission application is also identical; and that the HBJ Claimants may now be known as “the Addleshaw Goddard Claimants”. They and the Unison Claimants are here referred to as “the Claimants”.
Admitted that the applicant seeks permission to appeal on various grounds. Quoad ultra denied.

Ground 1: Onus of Proof.

There is, for the reasons given by the Inner House, no substance in this ground in either of its branches. As the ground makes clear, this is in any event entirely case-specific and raises no question of law of general public importance at all. What is complained of is simply a matter as to the application of settled law in this particular case. A bald assertion that the Inner House erred is not a proper ground of appeal. So far as paragraph 1.1 is concerned, the applicant did not ultimately dispute in the Inner House that the core issue was properly identified by the Employment Tribunal at paragraph 376, and that the burden of proof thereon had been properly described on behalf of the claimants (Inner House, paragraphs 13, 32 and 39-40 in particular; although the applicant had disputed this in a manner contrary to its present approach in its written argument, see paragraphs 5 and 11 of ‘comments’ therein). So far as paragraph 1.2 is concerned, this is unintelligible. Insofar as it can be understood, it appears to be based on an imaginary complaint that the reasoning of the Inner House ‘imports a higher standard than the balance of probabilities’. Visibly it did not do so, and what is said in that paragraph is a misreading. The applicant’s concept of a scheme being ‘prima facie valid’ is meaningless; a scheme is either shown to be valid or it is not.

Ground 2: Evaluation of evidence.

There is, for the reasons given by the Inner House, no substance in this ground in any of its branches. As the ground makes clear, this is in any event entirely case-specific and raises no question of law of general public importance at all. What is complained of is again simply a matter as to the application of settled law in this particular case. This ground gives no proper specification of any relevant error in law. So far as paragraph 2.3 is concerned, what is narrated there is factually incorrect. Dr Watson had not ‘used the techniques in the Glasgow scheme… when he worked at Hay’; he could say only that Hay had done something similar, in unknown circumstances (Employment Tribunal, paragraph 380; Inner House, paragraph 52). Further, the Glasgow scheme was, far from being ‘based on the values in the long-established GLPC scheme’, radically different in structure to that scheme which did not use ‘the technique of using two point scores’ which (as was common ground between the parties and as both the Employment Tribunal and the Inner House rightly observed, paragraphs 372 and 44-45 respectively) could not be combined.

Ground 3: Failure to remit.

This is not a competent ground of appeal in the absence of any suggestion that the Inner House erred in law in this respect: it is not a point of law that it would have been ‘appropriate’ to do so. But in any event this complaint is not arguable. It has never been suggested before in this litigation; it was not mentioned in the applicant’s note of argument; and the solicitor-advocate for the applicant expressly stated to the Court that he agreed with the submission for the Claimants (noted at paragraph 28) that if the appeal was allowed the case should be remitted to the employment tribunal to consider the question of equal value (he did submit that if the appeal were allowed only on the basis of a failure to articulate reasons the case might be remitted to require the Tribunal to amplify its reasons). With this background, the Inner House cannot be criticised for not remitting as here sought.

Ground 4: Misinterpretation of Equal Pay Act 1970, s 2A (2A)

PERMISSION TO APPEAL

Denied save insofar as coinciding herewith. This appeal does not raise any arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, a test which must be answered as a whole in relation to a specific question of law put forward. It is unnecessary to address further at this point the arguability of the Grounds of Appeal put forward; they either reiterate arguments already considered and rejected by the Inner House or make hopeless fresh complaints, but it is denied that any of them are properly arguable points of law. In any case, none of them can be said to be matters of general public importance, because they all concern the application of well-settled law to the facts of the case in circumstances in which it is not suggested that there is any conflict with any other decision in any of the United Kingdom jurisdictions, or any relevance to any other present or likely dispute or litigation. What is in issue here is the approach to an apparently unique scheme, not known to have been used by any other employer. No comparable scheme has ever fallen to be considered by any other employment tribunal in the United Kingdom (see the last sentence of paragraph 43 of the Inner House decision). Nor is it likely to be considered in other cases in the future. If any such point of law can be identified, and permission is granted, that permission should be expressly restricted to the specific point of law identified, rather than an unrestricted permission to appeal being granted which would permit the applicant to raise matters which are not points of law falling within section 40A (3) of the Court of Session Act 1988. With reference to the numbered paragraphs:

The concept of ‘a scheme that is prima facie valid and compliant’ with section 1 (5) of the Act, which was never meaningful, but which was advanced by the solicitor advocate for the applicant, was expressly departed from by senior counsel for the applicant. It is not an argument which is known ever to have been advanced before or since in any like case; it has always been accepted that the burden on the employer who seeks to avoid having equal value determined by the employment tribunal is to show a scheme that is actually valid (Inner House, paragraph 39), rather than merely one which is said to be, meaninglessly, ‘prima facie valid’. The Inner House did not ‘choose between two different possible constructions of the statutory provision’; it applied the construction of section 1 (5) which was agreed by the parties and which was amply vouched by the authorities cited by both sides. The ‘relevant factors’ have never been in dispute.
There is no gloss on the statute here and the Inner House never suggested a standard more onerous than the balance of probabilities, which was accepted on all sides as the standard. Again, there was no ‘question of choosing between different possible constructions of the statutory provision’; there was no choice to be made.
The Inner House did not say that as a matter of law ‘the section 1 (5) test required the Respondent to adduce independent expert evidence’. It pointed out that the employment tribunal had itself said that such evidence was required in the particular circumstances of the case for reasons it gave and which could not in this respect be faulted (paragraph 49), albeit another tribunal in another case might well have found otherwise. See paragraphs 47 to 53.
The Inner House said nothing of the kind, nor did it ‘construe the statute’ as described (indeed, its construction was, as pointed out above, not in dispute). Again, this does not go to statutory construction and raises no question of error in law as suggested; the matters raised here are pure fact .
As observed above, this is not a point of law at all, let alone an arguable one; and it is not one which should be entertained at this stage when it was not made to the Employment Appeal Tribunal or to the Inner House in either written or oral argument. In any event, standing the history of the litigation, and the nature of the issues before the Employment Tribunal and the Court, it could not seriously be suggested that the respondents should be entitled to re-litigate these issues before a new Employment Tribunal (Judge Cape having retired). That would be an unacceptable approach to litigation which was, in terms of Rule 2 of the Employment Tribunal Rules of Procedure, subject to the overriding objective of fair and just treatment and in particular the avoidance of delay and the saving of expense. The delay and expense of this litigation is already enormous.
This is put forward as a matter of bald assertion and entirely fails to engage with what the Inner House actually said at paragraphs 57-60. It identifies no error of law, merely a disagreement with the result. The final sentence goes nowhere for the same reasons as stated in 5) above.
It is right to say that the substantive law remains the same under the 2010 Act as it was under the 1970 Act. However, the substantive law is long-settled and was not in dispute. There is no issue of statutory interpretation in this case at all, let alone one of public importance which ought to be considered by the Supreme Court at this time: cf. Uprichard v Scottish Ministers, 2013 SC (UKSC) 219 at paragraph 60.
This paragraph, and the following paragraph, of the application have no relevance to the question presently before the court in terms of section 40 (3) of the Court of Session Act 1988. The fact that the sums involved are large does not give general public importance to any point of law in the case; section 40A of the Court of Session Act contemplates an importance beyond the particular litigants, and does not give greater rights of appeal to large employers such as the applicant than to small employers who have conducted disputes promptly and efficiently so as to keep their cost in reasonable bounds. It is right to say that this decision affects (in round figures) 6000-7000 claims and that the overwhelming majority of these seek equal pay (not ‘compensation’) from April 2006 to date. The global figures in issue are not clear. The public estimate of the representatives of the Addleshaw Goddard claimants (that is to say, of Action 4 Equality) is indeed that this sum is likely to be in the region of £500 million. The reason for that is in large part the length of time these proceedings have already taken. They were begun in September 2009, and have suffered enormously time-consuming and expensive procedure already. They have suffered from ‘delaying tactics’ by the applicant (as the leader of the Council has publicly admitted) over many years. The effect of this delay has been roughly (this is in the absence of necessary pay data to be supplied by the applicant) to increase the sums in issue by about £50 million a year, which is about 10% of their annual payroll of about £500 million. Even on the applicant’s own public estimate, ‘every delaying tactic of the previous administration has added £20m a year to the final bill this council will be facing.’ (‘Evening Times’, 15 September 2017). That is hardly a good reason for continuing these proceedings yet further before they are resolved.
If the decision of the Inner House is to be treated as decisive, and if the question of equal value is not to be determined in the Employment Tribunal, then certainly a replacement job evaluation scheme would have to be set up (although in the defences which the applicant has lodged to fresh equal pay claims made since the decision the applicant claims the current job evaluation scheme remains a good defence, see ET3 produced). The applicant has known since at least 2009 that their scheme was under attack and might be struck down, and throughout that time it has had advice on this from senior counsel and external solicitors. Further, between 2009 and 2013 it was subject to a formal EHRC investigation into gender discrimination in its pay scheme. The EHRC reported to the applicant on this (before the hearing in the Tribunal began) with recommendations (which the applicant has refused to disclose or permit the EHRC to disclose, but which it has described as ‘contentious’: email from applicant’s solicitor of 23 January 2013). It is inconceivable that it will not have been fully advised for many years that it should plan for the possibility that its scheme would be struck down, and have made contingency plans. Such plans should neither be difficult nor time-consuming. The applicant has available to it the ordinary SJC scheme which is operated, with broad satisfaction, by almost every other local authority in Scotland and has never been challenged as not valid and compliant with the legislation. They need only apply it, or some other well-established scheme such as the GLPC scheme. The position of the applicant as to this is equivocal. It did not appeal the decision of the Employment Tribunal as to Employee Development Commitment, or that of this court as to pay protection; but it has stonewalled any progress to resolve these. Necessary pay data requested on 12 May 2017 has still not been disclosed, although long promised. It has given no indication as to what it anticipates to be the sums involved. Its public position, outside this litigation, is that it is not appealing this decision but ‘only seeks clarity’: it has been said in its name that ‘any remaining legal proceedings … will not be used to delay or put barriers in the way of reaching a settlement. Crucially, leave to appeal does not mean appeal’ (Herald, 14 and 15 September 2017). Any grant of permission to appeal which was taken advantage of by the applicant by actually appealing would however inevitably incur substantial further delay and expense. It is accordingly, unclear whether the present application is being seriously maintained.

(Solicitor for the Addleshaw Goddard claimants)

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

Now most of these issues were the subject of a very full debate at the original Court of Session appeal hearing and, as I've explained previously, the Council side was on the wrong side of what I would describe as a good 'kicking', a very descriptive albeit non-legal term.

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

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.

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

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

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].

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.

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

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.

Glasgow - Court of Session (08/10/17)

A reader from Glasgow passed on the following comment from a work colleague regarding the City Council's decision to seek leave to appeal the decision of the Court of Session which found the WPBR pay scheme to be 'unfit for purpose'.

"How come an SNP council is trying to raise the case in the UK supreme court, is a Scottish judicial decision not good enough?"

Now that's a very good point, I have to admit.

Especially when you consider that the Court of Session is Scotland's highest civil court and that the CoS delivered a cogent, powerful and unanimous judgment .

So if GCC were to be granted leave to appeal, the SNP will look pretty ridiculous if it sets off to the UK Supreme Court in London to overturn the considered views of three senior Scottish judges.

But I don't think that is going to happen for reasons I will explain on the blog site later today.

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