Appeal No.	 EAT/443/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 2000

Before
HIS HONOUR JUDGE H WILSON
MISS C HOLROYD
MR H SINGH

MR A AKINOSHUN	APPELLANT

SHAFTESBURY HOUSING GROUP	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A AKINOSHUN
(In Person)	
For the Respondent	MR A CHESHIRE
(of Counsel)
Instructed by:
Fairbairn Morris
Solicitors
Grant House
56-60 St John Street
London EC1M 4DT	

JUDGE H WILSON

1	This has been the final and full hearing of the appeal by Mr Akinoshun who was the original Applicant against the Decision of the Employment Tribunal sitting in London South on 10 November 1998, that he had not been unfairly discriminated against on the grounds of his sex and that he was not paid less than female workers on the grounds of his sex, so that his claims both failed. 

2	The matter came before the Employment Appeal Tribunal as a preliminary matter on 23 July 1999 and that Division of this Tribunal gave the Appellant leave to amend his Notice of Appeal by withdrawing all the matters which were before the Court at the beginning of the preliminary hearing and by substituting the two grounds which had been drafted on the Appellant’s behalf by Mr Greene who had represented him under the ELAAS arrangements.  

3	The two grounds therefore upon which the appeal has proceeded before us today are as follows: first of all that the Employment Tribunal erred in law in failing to consider or take into account any continuing justification for the differential between the Appellant and the comparator, Mrs Patsy Foley, as at the date of complaint in August 1998, arising from the relevant market conditions pertaining as at the date of the hiring of the comparator in September 1995.  

4	The second ground was whether the Employment Tribunal had erred in law in failing to address whether the factors taken into account in the differential between the Appellant and the said comparator, were justified as at the date of the Appellant’s re-engagement in April 1997.  Mr Akinoshun has today appeared to conduct his own appeal and the Respondent has been represented by Mr Cheshire who represented the Respondent in the initial proceedings.  

5	The short facts of the matter as found by the Tribunal were that the Applicant, Mr Akinoshun and the comparator Mrs Patsy Foley, both worked for the Shaftesbury Housing Group who ran residential homes to replace a need due to a closure of homes previously run by the London Borough of Lambeth.  

6	The Respondent had to engage suitable staff to manage the home and the Applicant had been among those who had applied for jobs in the initial tranche.  Only one employee was engaged on that occasion, and that was Mrs Patsy Foley.  In his Notice of Appeal, Mr Akinoshun submits that that was an error of fact, so far as the Tribunal was concerned.  We make no judgment on that; we note that he says that that is the case and we observe that, whether he is right or the Tribunal was right, is irrelevant to what we have to decide.  The important point about it seems to us to be, as to the Tribunal, that only one employee was engaged through the first round of recruitment and that was Mrs Foley who had 18 years of experience, who had been made redundant on the closure of one of the Lambeth homes, who had previously worked with some of the residents and who could provide continuity.  Most important, the Tribunal found that her previous salary had been substantially higher than what was on offer from the Respondent and in order to secure her services, she was offered a starting salary higher than she would normally be entitled to.  

7	The Tribunal found that the Applicant was engaged at a later date, and his salary was based on the Respondent’s normal scale.  They found that his academic qualifications were superior to Mrs Foley’s but were not relevant to the job which she was engaged to do.   Furthermore, as opposed to her 18 years experience  of care work, he had only 18 months.  

8	The Tribunal found that the statistics produced by the Respondent to show that the Applicant was not the only male employed by them should be accepted because they were not challenged by the Applicant.  Those statistics disclosed that at least 26 other female employees got less pay than he did.  Finally, the Tribunal found that the delays which had happened in the activation of the grievance procedure by the Applicant were neither deliberate nor racially or sexually motivated.  

9	Having found those facts, the Tribunal directed itself about the law and they found that the Respondent had satisfied them that the difference in pay between the Applicant and Mrs Foley was due to recruitment difficulties that existed at the time when she began to work, and to the fact that she had greater relevant experience.  They therefore accepted that the difference in pay was due to those factors and not due to sex and so found that the Applicant failed to establish his case and it was dismissed.  

10	Today, before us, addressing his remarks and submissions in accordance with the two grounds upon which his appeals proceeded, Mr Akinoshun has submitted that there was no continuing justification for a differential in pay, in August 1998, which is when he discovered the matter, in the context of the market conditions which prevailed in September 1995, and he questioned whether there were any factors justifying the differential in 1997 as well.  He submitted that there was, in fact, no justification to keep him on a different salary  and that his position should have been reviewed in 1997, but that did not happen.  

11	He referred the Tribunal to the judgments in several cases, the first of which was Strathclyde Regional Council -v- Wallace [1998] l All E.R. at page 394 and particularly at pages 398j and 399a.  Based upon what is set out at those points in the judgments, Mr Akinoshun submitted that in this case, because the Respondent’s reasons were sham or false, they should be rejected.  He suggested that the reasons given were a pretence or a sham and therefore he should have succeeded.

12	He next referred us to the Decision in Snoxell reported in [1977] ITR 235 and he relied on what is set at page 244b of that judgment.  Arising from that he said that in fact the situation in 1998 relied on an earlier discrimination.  He submitted finally that by the time he was re-engaged in 1997, the situation which had pertained in 1995 no longer existed.  That was a reference to the difficulties of recruitment in 1995 when the Tribunal found as a fact that only one person was engaged, and that was Mrs Foley.  

13	In reply, on behalf of the Respondent, Mr Cheshire relied largely on the same authorities but referred to different portions of the judgments.  He submitted that what the authorities showed was that if the employer could point to a reason for a differential, which was not tainted with sex, then that was the end of the matter.  He pointed out that the purpose of the legislation was not to ensure fair wages but to prevent inequality of wages on grounds of sex, and he pointed to the matters which he had set out in paragraph 9 of his Skeleton Argument.  Those matters were the findings of fact by the Tribunal upon which the Tribunal had based its decision.  He referred to page 399c of the Strathclyde judgment Lord Browne-Wilkinson there said:-

“There is nothing in the words of the subsection which requires the employer to ‘justify’ the factors giving rise to this disparity by showing that there was no way in which the employer could have avoided such disparity if he had adopted other measures.”
Further on, in Lord Browne-Wilkinson’s judgment, at page 400g:-
“From what I have said, it is apparent that in considering s1(3) of the Equal Pay Act 1970, the only circumstances in which questions of ‘justification’ can arise are those in which the employer is relying on a factor which is sexually discriminatory.  There is no question of the employer having to ‘justify’ (in the Bilka sense) all disparities of pay.  Provided that there is no element of sexual discrimination, the employer establishes a sub-s (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the disparity in pay complained of.”
And finally, at page 401g Lord Browne-Wilkinson observed:-
“The purpose of s1 of the Equal Pay Act 1970 is to eliminate sex discrimination in pay not to achieve fair wages.  Therefore if a difference in pay is explained by genuine factors not tainted by discrimination that is sufficient to raise a valid defence under sub-s (3): in such a case there is no further burden on the employer to ‘justify’ anything.”

14	Mr Cheshire went on to point out that the judgment in Strathclyde had been applied in a later case of Glasgow -v-Marshall [2000] 1 W.L.R page 333, particularly at page 339, where at g, it is stated that if the employer proves the absence of sex discrimination, he is not obliged to justify the pay disparity.  So said Mr Cheshire, ‘Once a non-discriminatory history has been established, that is the end of the matter’.  

15	Applying those submissions to the facts found by the Tribunal, it seems to us quite plain that there was a non discriminatory history because the reasons for the disparity were several, none of which were sexual.  First of all, Mrs Foley was somebody that the Respondent very much wanted to have on board, and therefore they paid more in order to secure her services. Secondly, she had vastly more experience in the field concerned than the Applicant, and finally, she had already worked with some of the residents that were to be housed in the new home.  Those were all reasons which had nothing whatever to do with sex and that is the non-discriminatory history which has been established.  

16	That having been done, there is no requirement on the Respondent to justify anything and the question of differential loses significance.  Accordingly, we find that this appeal must be dismissed and we do dismiss it.