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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Morgan v. Middlesbrough Borough Council [2004] UKEAT 0375_04_2211 (22 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0375_04_2211.html Cite as: [2004] UKEAT 0375_04_2211, [2004] UKEAT 375_4_2211 |
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At the Tribunal | |
On 17 September 2004 | |
Before
MR COMMISSIONER HOWELL QC
MR D SMITH
MR S M SPRINGER MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR E LEGARD (of Counsel) Instructed by: Messrs Archers Solicitors Barton House 24 Yarn Road Stockton on Tees TS18 3NB |
For the Respondent | MS J WOODWARK (of Counsel) Instructed by: Middlesbrough Borough Council Legal Service PO Box 99 A Municipal Buildings Middlesbrough TS1 2QQ |
MR COMMISSIONER HOWELL QC
"(4). A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences."
As explained in a passage from the judgment of Phillips J when sitting as the President of the Appeal Tribunal in Capper Pass Ltd v. Lawton [1977] ICR 83, 87-88 referred to and adopted in many later cases, the test in section 1(4) in practice in most cases involves the tribunal in a two-stage inquiry. First, is the work of the same, or, if not, of a broadly similar nature? Secondly, if on a general consideration of the type of work involved and the skill and knowledge required to do it, the answer is that the work is of a broadly similar nature, it is then necessary to go on and consider the detail and inquire whether the differences between the work being compared are of practical importance in relation to terms and conditions of employment. At both stages a minute examination of detail and trivial differences not likely in the real world to be reflected in the terms and conditions of employment ought to be avoided. Furthermore, in considering the second question a difference between duties the man and woman being compared are contractually required to perform is relevant only insofar as it results in an actual difference in what is done in practice: it is the actual activities involved in the individual's job not the notional paper obligations that are important in ascertaining any relevant differences. In these two stages of the inquiry under section 1(4) the legal burden of proving that she is employed on like work with a man rests on the woman claimant, but if the first question is answered in her favour a practical and evidential burden of showing differences of practical importance rests upon the employers. It is only if she does manage to establish that the two questions are to be answered in her favour so that she is employed on like work with a man, that the third question on her Equal Pay Act claim arises under section 1(3), namely whether the employer can then prove that any variation between her contract and that of the male comparator is genuinely due to a material difference (other than the difference of sex) between her case and his: see in particular Shields v. E Coomes Holdings Limited [1978] ICR 1159, especially per Bridge L J at 1179E to 1180D.
"The Facts
15. The Tribunal found facts on a balance of probability after considering all the evidence both oral and documentary and after considering both written and oral submissions made on their behalf, as follows:
(a) Generally all three test applicants' terms and conditions are under the National Joint Council for Local Government Services. All applicants are female and are paid on a pro-rata term time only basis.
(b) Mrs Morgan's date of birth is 4 December 1959. She was employed from 9 September 1976 to date. Mrs Morgan is an administrative officer at Martin Manor Primary School which at January 1988 had a role of 188 pupils but currently had 211 pupils. She had a salary of £19,723.68 per annum and was graded SO1 on a scale of grades adopted by the respondent covering NJC spinal column point (SCP) range 29 to 31. Her salary is based on SCP 30.
(c) A whole time employee on SO1 grade SCP 30 would receive £21,046.00 per annum. The applicant receives £1,322.32 less than this because she is classed as term time only. The term time payment is accumulated [sic] leaving the term time employee earning less per month than her whole time equivalent albeit for being required to work less time. The rate of pay per hour acknowledged to be worked is the same for the term time employee as it is for the whole term employee at the same grade SCP point.
….
(f) Mrs Morgan has attempted to obtain full time status (pages 231 to 232) but this has not been successful (pages 241 to 242). The governors refer to any expansion of work outside of term dates (other than already established) as being neither necessary nor appropriate. That letter was signed by the Chairman of Governors but written from a draft prepared by Mr Harry Eagling (page 140) the respondent's Education HR Manager. It followed a request made by Mrs Morgan on 29 October 2002 (pages 231/232).
(g) The applicant relies upon her job description (pages 438/439) broadly similar to her previous one (pages 94/95) for a description of the tasks she has undertaken. The primary functions display a strong financial emphasis in supporting the head teacher and providing an effective administration to the whole school. Principal responsibilities include modelling the school budget and an interface with head, governors, curriculum co-ordinators, pupils and staff. In evidence Mrs Morgan identified her principal responsibilities as those at paragraphs 1,3, 10, 14, 15, 20, 24 and 25 of the job description at page 438.
…
(i) In seeking to compare herself with Mr Mell, who is School's Administrator for Coleby Newham School, whose job description is at page 455, Mrs Morgan says she does not administer a mini bus but does administer lettings. In terms of the person specification at pages 511/512 for Mr Mell's replacement in the year 2000 she says there is nothing she does not have except an AAT accounting qualification. The post became SO1 full time. It had been an SO2.
(j) We are given little information about Mr Mell's former employment from the respondent. Mr Hiser [human resources officer who gave evidence for the Council] described him as having been a part-time school administrator at Coleby Newham Secondary School until he retired in March 2000. He had been a Deputy Head Teacher who had retired and begun to work as a School Administrator in March 1996 on a casual basis due to the serious illness of the then existing post holder, who subsequently died. From June 1996 until July 1996 he worked 25 hours per week on a term time only basis. His contract was renewed for the Autumn term from September 1996, but in October 1996 he was given a permanent contract working 22½ hours each week on a whole time basis. Despite at the hearing in February 2003 instructing the respondent to produce documentation at the resumed hearing such as School Governing Body minutes or correspondence to show the reason or reasons for this change none has been produced. The respondent instead has produced samples of financial reports, budget plans and statistical analysis he and his successor Ms Lawton carried out and then presented to the Schools Governing Body (pages 583 to 646). The respondent then simply says that Mr Mell's functions were very similar to those of Paul Bevington.
(k) With effect from 31 August 2002 Coleby Newham School and Brackenhoe School are being closed and are being replaced on 1 September 2003 by Kings City Academy. On the secondary school rol[l] for January 2002 (page 246) Coleby Newham is showing as having a total of 712 pupils. Mr Hiser in his evidence indicated that he had attended the Governing Body where Mr Mell presented figures, negotiated a cleaning contract and produced some prediction of GCSE figures. He did not do orders or invoices. He might have done budget reconciliation. He did do the system called SIMS. He did not do reception work. He was involved in plan maintenance projects, remedial projects, pupil forecasts. He did not act as an initial point of contact (item 15 on Mrs Morgan's job description), day to day organisation of the administrat[iv]e support to the head teacher (item 18 on Mrs Morgan's job description) incoming or outgoing mail (item 20 on Mrs Morgan's job description) or items 21 or 22 (see the job description for Mrs Morgan at page 438).
(l) Summarising the differences that we found Mr Mell did not provide the function of receptionist, or typist or collect dinner money. An additional function on his part was in terms of predicting GCSE figures. The school was larger in terms of pupil numbers. In terms of the primary job description functions, however, the applicant Mrs Morgan and Mr Mell carried out a similar job albeit Mrs Morgan at a primary school of considerably less numbers and Mr Mell at a secondary school with larger numbers. While Mrs Morgan had additional functions they tended towards the more routine and lower grade jobs. Most fundamentally the hours were different. Mr Mell brought to the job skills that Angela Morgan did not have namely his experience as a deputy head teacher.
(m) Mr Bevington's job description is at page 455 of the bundle. His principal duties were divided between finance and premises. He was regarded as part of the management team and had the title "School Manager". He managed Kings Manor School, a comprehensive school for pupils aged 11 to 16 with a rol[l] at January 2002 of 1,102 (page 246). He has a degree in business administration. He has been expressly delegated the management of the school budget of over £3.5 million. Kings Manor is a specialist sports college and Mr Bevington is responsible for the maintenance of all the school buildings, services and equipment and the planning of repairs and renovations. The school is used by the respondents Leisure Services before and after school hours and at weekends and during the school holidays. Mr Bevington negotiates with the council over its terms for the use of the sport centre including rent and maintenance charges, hours of use of the centre and contributions to the costs of replacement of equipment. The premises include four floodlight tennis courts. He is the first point of contact for over 65 teaching staff who may have requests for additional resources, additional or replacement equipment or budget queries. He has functional responsibility for four other clerical staff. He is involved with a negotiation of contracts. He administers additional budgets and cost centres. He has no lower grade tasks such as reception, typing, collecting dinner money or other more routine tasks carried out by Mrs Morgan. He is able to carry out a more strategic role because of the availability of more junior clerks to carry out the routine tasks.
(n) The emphasis of Mr Bevington's role for premises is a significant difference. His strategic role and his position as a member of the senior management team with others being available to carry out the more routine tasks we also found to be of significance. All the differences identified between Mrs Morgan and Mr Mell also exist in Mr Bevington's case but on a larger scale. He works full-time 37 hours per week. The job is on SO2, £20,966.00 to £22,195,00 with pay award pending.
...
...
Conclusions
21. As the Tribunal found itself able to decide the matter on the basis of whether or not the applicant's were doing like-work with their comparators we have not gone on to consider and do not set out here the arguments pertaining to the issue of genuine material factor defence. We were not invited to make such conclusions so as to bind that issue when it comes, as it may, to a consideration of work of equal value and we think that that has to be right since under that heading there are additional comparators to be considered. We therefore confine our conclusions within this decision to the issue of like-work. We reached the following additional conclusions as to fact and law based upon our above findings of fact and arguments presented to us. …
23 ... there is an earlier question [than the genuine material factor defence] for the Tribunal to ask itself and that is whether the applicants and their comparators are doing like-work that is to say the same or work of a broadly similar nature and for the Tribunal to ask itself whether the things that they do which are different are of practical importance in relation to terms and conditions of employment. The essential difference in terms and conditions about which these applicants complain is that they are expected to work term time only whereas those in junior schools, that is to say their comparators, are on full time contracts. This has further impact in terms of pension, treatment of holidays and sickness.
24. There is a superficial attractiveness about Mr Legard's argument that the work is broadly similar in the sense that the applicants provide a service to their school and head teacher as do the comparators in their schools, but it is only by analysing the differences to determine whether these are of practical importance that one can establish whether the work is of a broadly similar nature.
25. We have accepted that the applicants do not have to point to a man at present employed on like-work or workers equivalent as long as there was a man employed on such work (Sorbie v. Trust House Forte Limited) or that there is any requirement that the men are fairly representative of a group of workers (Pickstone v. Freemans plc and British Coal Corporation v. Smith).
26. Analysing, therefore, the difference we were able to find that Mr Bevington and Mr Mell provided a service to secondary schools whereas the applicants provided a service to primary schools. Mr Bevington's school had a roll of 1,102 which contrasted with 188 for Mrs Morgan. Mr Bevington had no routine lower grade tasks such as reception, typing, collecting dinner money, maintenance and development of a filing system or the dealing with mail. While it was difficult to assess how much time Mrs Morgan or her co-applicants spent on these items they were clearly of a routine and regular basis. Mr Bevington had four people reporting to him. There was clearly a strategic role covered by Mr Bevington. He was part of the senior management team. The hours worked were different. Mr Bevington had several other cost centres and budgets to administer. There was a high emphasis in his case on the management of premises and services. Mr Mell's roll was 712 whereas Mrs Watson's [Mrs Angela Watson - another test applicant] was 355. Mr Bevington and Mr Mell prepared budgets whereas Mrs Watson did not. Again, in Mrs Watson's case lower grade tasks appeared to comprise a large part of her daily duties whereas they did not form part of Mr Mell or Mr Bevington's roles. We concluded that there was no real strategic role for Mrs Watson. She was not responsible for the maintenance and development or use of the school site whereas Mr Bevington in particular was. The hours were different. Mrs Reed was also employed in a primary school as opposed to the comparators in the secondary school. Her roll was 217 to 383. She did not do preparation of the budget. Unlike Mr Bevington and Mr Mell she did not attend governors meetings. She too had lower grade duties such as reception, telephone, collecting dinner money, handing out medication. Financial tasks in her case were downloaded and she passed on information rather than having a strategic role. She was not responsible for maintenance, development or use of the school site unlike Mr Bevington in particular. Her involvement in tendering was limited to telephoning around. Her hours were different. A point of similarity with Mr Mell was that she was interested in and advised on IT packages. Mrs Morgan also carried out routine clerical work not carried out by Mr Mell.
27. From the above we concluded that there were significant differences between the applicants and their comparators. These related to the scale of the operation (numbers of pupils and therefore number of staff, size of the budgets) and that this represented a practical difference of importance. We also concluded that the applicants did not have functional responsibility for others which was certainly the case in respect of Mr Bevington. Most particularly included with each of the applicants was a large amount of lower grade clerical tasks and whereas it was impossible on the evidence to determine exactly how much time they spent on these tasks it was clear to the Tribunal that by the very nature of them this had to be a significant amount of time. There was direct involvement of the applicants with parents and children which was not the case with their secondary school comparators. The secondary school comparators had a far greater responsibility in terms of contractual matters and involvement in the negotiation of contracts. In the case of Mr Bevington certainly and probably to a lesser extent by Mr Mell there was responsibility for managing premises. The two secondary school administrators had a more strategic role within the structure of the school and their whole time was spent on financial matters. Mr Bevington had a role which was more managerial in nature. Whereas the primary school administrators also dealt in financial matters it was on a smaller scale and their time involved many more lower grade routine tasks of the type that did not exist out of term time such as collecting dinner money, reception, dealing with post. In secondary schools these matters are dealt with by staff other than the male comparators. The very nature of the different functions suggests to the Tribunal that there was a significant amount of time spent by the primary school applicants on more routine matters as against a very more significant time spent by their secondary school comparators on managerial and financial matters.
28. While in Dorothy Perkins Limited v. Dance, Kilmore-Brown J stated:
'We feel that it is vitally important to reiterate … that it is no part of [a] tribunal's duty to get involved in fiddling detail or pernickety examination of differences which set against the broad picture fade into insignificance.'
we are satisfied that the differences that we find are of practical importance. We do not see this as being too pedantic an approach, but it would not be proper to consider the duties that the man and a woman do not have in common as ones that should be excluded from consideration (Maidment & Hardacre v. Cooper and Co Birmingham) Limited [1978] IRLR 462. The differences were not differences which were "in effect separate and distinct" as in Doncaster Education Authority v. Gill EAT 568/89.
29. We have considered the frequency or otherwise with which the differences occur in practice, their nature and their extent. We have looked at the differences in work actually done, how large those differences are and how often they operate. In particular, it is the Tribunal's view that the work of a more routine nature which the primary school administrators carry out is very much more term time related whereas the more strategic and managerial role carried out by their secondary school comparators is more appropriate for whole time work.
Summary
30. In summary, therefore, we find that the work carried out by the applicants is not like-work or broadly similar to that carried out by their comparators because of the degree to which the applicants carry out routine, lower grade tasks as against the more strategic and managerial role carried out by their secondary school comparators. We find that these are differences of practical importance."