EAT PRACTICE AND PROCEDURE:
Preliminary issues
EQUAL PAY ACT
Material factor defence and justification
This case involves complicated equal pay claims against the council in which different claimants (some 1050 in all) compare themselves with a range of comparators. There are also discrimination claims against the two trade unions. The claims relate to two periods, one pre-October 2005 and the second after that date. There were separate GMF defences with respect to each period. A hearing with respect to both was ordered on the premise, accepted by the council, that the jobs were either of equal value or had been rated as equivalent in a job evaluation study (JES). Subsequently the lawyers for the claimants indicated that they wished to amend the claim to challenge the validity of a JES. The basis of the claim for many of the claimants had hitherto been that this was valid and that they had been rated equally with their chosen comparators under it. In the light of this proposed amendment the employers sought to have the GMF hearing stayed until the application to amend, and the determination of the JES challenge if the amendment was permitted, had been determined. The Employment Tribunal resolved to adjourn consideration of the amendment and to continue with the GMF hearings.
The EAT held, contrary to the submissions of the employers, that the Tribunal was entitled to take the view that the hearing should continue with respect to the GMF defence pre-October 2005 since that would remain in issue whatever the outcome of the JES challenge. However, the Tribunal did not act reasonably in determining that the post 2005 GMF defence should also be determined. There were potentially significant adverse consequences if that were to be decided against the employers and the challenge against the JES were subsequently to be accepted and prove successful.
The order of the Tribunal was varied so that at the resumed hearing it should only hear and determine the pre-October 2005 GMF defence.
Judges:
Elias P J
Citations:
[2008] UKEAT 0219 – 08 – 2006
Links:
Statutes:
Citing:
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 17 July 2022; Ref: scu.270230