Brownbill -v- St Helens and Knowsley Hospital NHS Trust

13 August 2010

In what is a disappointing decision for Respondents, the Employment Appeals Tribunal (EAT) has held that when comparing the pay of Claimants and Comparators in equal pay cases, the Employment Tribunal (ET) must look at each individual term separately in order to establish discrimination, even if the Claimant is paid higher globally than the Comparator.

Facts
This case centred around whether a term in the Claimants’ contracts relating to enhanced payments for working unsocial hours as part of their standard working week was less favourable than a similar term in the Comparators’ contracts. On the face of it, the Comparators were paid higher enhanced payments for working the same unsociable hours as the Claimants. However the Claimants were globally paid more than the Comparators when the elements of remuneration were added together.

The ET held that since the enhanced payments were for unsocial hours worked during normal working hours, the enhancements formed part of the basic pay and the two terms were therefore not discrete and there was no less favourable term.

EAT Judgment
In overturning this decision Mrs Justice Cox, sitting alone, reaffirmed the principles behind equal pay legislation and referred to a number of domestic and European authorities, including the House of Lords’ decision in Hayward v Cammell Laird Shipbuilders Ltd.

The Hayward case was based on very similar facts to the present case and considered the meaning of section 1(2) of the Equal Pay Act (‘the Act’) and, in particular, the definition of the word “term” when considering whether a term in a female’s contract is less favourable that that in a male’s contract. Lord Goff held it would be an “unacceptable violence” to the Act to globally compare the many separate terms of remuneration, for example basic pay, sick pay, cash bonuses etc. and instead held that each term should be considered and compared separately and discretely.

In applying the findings in Hayward to the present case, Mrs Justice Cox stressed the importance of ensuring transparency and non discriminatory pay structures and commented that it was a “common misunderstanding” that a female worker was not entitled to equal pay if she appeared to be better paid than her comparator when looking at the situation globally.

Comment
We understand an appeal is being considered. This outcome is of course dependant on other factors such as the availability of a Genuine Material Factor defence but nonetheless this judgment introduces a further hurdle to climb for NHS Trusts in Equal Pay litigation. Related services