Glasgow's 'Unfit For Purpose' WPBR

A year ago this month (December 2017) Glasgow City Council lost its attempt to overturn the decision that the WPBR pay scheme is 'unfit for purpose'.

The Council argued that the original decision (in August 2017) was badly flawed on a number and asked live to appeal the decision to the UK Supreme Court in London.

The judges in the Court of Session, Scotland's highest civil court, gave the Council's case short shrift and in another unanimous decision threw Glasgow's appeal out on its ear.

What a day that was - and what I had to say in the build up to that hearing which took place on 21 December 2017. 

  

Glasgow - Court of Session (04/12/17)

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.

  


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

In 

Application for permission to appeal to the Supreme Court 

By

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

1. 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”.
2. 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)

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. This ground gives no proper specification of any relevant error in law. As the Inner House noted, there was indeed little if any disagreement as to the law. The last sentence of paragraph (12) goes nowhere, for the same reasons as apply to Ground 3 above.

PERMISSION TO APPEAL

3. 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:

1. 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.
2. 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.
3. 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. 
4. 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 .
5. 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. 
6. 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.
7. 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.
8. 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. 
9. 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)