Equal Pay - reversal of previous EAT decision

1 June 2010

However in the recent case of City of Edinburgh Council v Wilkinson and ors, the EAT has made the unusual step of overturning this conclusion, which will have far-reaching implications on public sector employers in terms of the scope of permissible comparators available to Claimants.

Section 1(6) of the Act provides that the Claimant and any comparators must be employed by the same or an associated employer “either at the same establishment or at establishments at which common terms and conditions are observed either generally or for the relevant classes of employees.”

In the City of Edinburgh case, 52 women employed in jobs such as those in schools, libraries and social work compared themselves to male manual workers such as gardeners and refuse collectors. Both sets of contracts contained mobility clauses and accordingly both carried out their roles throughout the city.

At the Employment Tribunal (“ET”), it was held that the claimants were in the “same employment” as the comparators and were therefore employed on “common terms and conditions.” However the ET concluded that the claimants were not employed at the “same establishment” as the comparators, as they worked at different locations.

The EAT dismissed the Council’s appeal and upheld cross-appeals from some of the claimants concerning the interpretation of “same establishment”.

Lady Smith sitting alone held that the word “establishment” is not confined to where each claimant worked. Instead it should be focused on the fact that the Council itself is a single establishment satisfying the requirements of section 1(6). She confirmed that this presumption will only be set aside if, on the facts of the particular case, it can be shown there are “subsets” of the employer’s operations which can be regarded as separate establishments. In overturning her decision in the Dumfries case she held that it would be sufficient for claimants in a case where employment in the same establishment does not seem likely, to demonstrate that it is likely that the comparators “would, wherever they worked, always be employed on the same terms and conditions.”

Comment
The case greatly increases the number of potential comparators available to claimants in public sector equal pay cases. This will mean an increase in claims from claimants employed in female dominated jobs such as administrators, learning assistants and library staff, who will now be able to choose from a wide range of comparators, from male dominated jobs who do not necessarily work at the same location.