(Original post by zhog)
Well, that is not a fair representation of my position but we must always accept it may be lack of clarity at my end. It doesn't come as a surprise to learn that somewhere in that report (thanx for it, a quick look made me wish to wait for the SC instead) will be all technicalities that make the ruling more than a case of 'dividing men and women', it's not as if I was suggesting anything illegal has taken place. If there is a stage at which the divide between men and women may surface, that will be at the point of interpretation of the technicality. A 'sympathetic' attitude towards women could affect the interpretation, as much as prejudice against them could go against. We don't know whether that is the case here, of course.
It is a revolutionary case, we're talking equal pay for different jobs and roles here. Whatever the technicality is, it has been buried somewhere all this time, awaiting discovery and application to the world. Now that it's out of the box, how far is it going to travel? I suspect the same technicality will now open the door to a new field of court time on arguing why can't everyone just have the same pay. Up until now, businesses were mostly free to choose how to grade their employees and that is very likely to be affected. It is a big ruling, it will cost ASDA and others billions.
On top of all that, we all mainly agree it is totally counter-intuitive. The technicality has to be a very powerful one and it would all be clear to us, had we sat through the whole thing or able to search for it in the report, but as it is... I'd have to have it explained in detail to be sure it is all black and white.
No, people disagree with the outcome of the ruling. They do not know if they disagree with the technical legal reasoning because they have not seen the technical legal reasoning. You are telling me it is a revolutionary case, when you have only scanned the judgment; you too are not familiar with the technical legal reasoning nor whether it is a radical enlargment of pre-existing principles. Judges (and Lord Justices) can only follow the law.
I don't know whether it is a radical enlargement because I know very little about this area of law. But, from a brief read, it seems tthe CA conceives that it is following pre-existing case law. In particular,
104: The essential reason why in my view the Judge's conclusion was open to him – indeed I believe right – is that for both classes (i.e. retail workers and distribution workers) Asda applied common terms and conditions wherever they work. The effect of the case-law, and of North
in particular, is that in such a case "wherever they work" extends even to a workplace where they would never in practice work because the nature of its operations is so different, as it was in both Leverton
itself. The contrast is with a situation where there were no common "distribution terms", so that what terms a distribution worker enjoyed would depend on where they worked.
105: I appreciate that it may seem artificial to say that common terms and conditions apply between depots and stores on the wholly hypothetical basis that if a distribution worker worked (as a distribution worker) in a store distribution terms would apply to him; but the Supreme Court in North
confronted that very issue and explained why its conclusion was justified, both on the language of the statute and in policy terms (as to which see in particular para. 34 of Lady Hale's judgment).