Equal pay decision

4 June 2009
 

We report another recent Equal Pay decision in which the Employment Appeal Tribunal (EAT) overturned an Employment Tribunal (ET) decision, this time in favour of employers.

In Dumfries and Galloway Council v North and ors the EAT ruled on the extent to which section 1 (6) of the Equal Pay Act (1970) (the Act) permits a Claimant to bring an equal pay case based on a comparator at a different workplace, where there are no common terms and conditions for employees generally at those workplaces and the terms of the respective male and female groups are set under different collective agreements.

Section 1 (6) of the Act provides that the Claimant and the comparator 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 this case more than 200 nursery nurses, learning assistants and classroom assistants working for the [D& G] Council sought to compare themselves with road workers, groundsmen, refuse collectors, refuse depot and leisure attendants employed by the same Council but at different locations. At a pre-hearing review the question for the ET had been whether a Claimant and comparator, working for the same employer but at different establishments, can be treated as in the same employment if common terms and conditions of employment are observed.

The ET held that even where an employee would never be employed at the same establishment as the Claimant it is possible to construct a hypothesis as to the terms and conditions on which the comparator would be employed there.

The EAT overturned the decision. It held that the ET had, in fact, constructed a hypothesis that would never occur. The EAT, in determining whether there are common terms and conditions between the two workplaces, set a two stage test. First, it must be established that there is a ‘real possibility’ of the comparator being employed at the Claimants’ place of work in the same or a broadly similar job. Secondly, the terms of such employment must be broadly similar to those under which the employees of his class are employed at his establishment.

Comment
One of the key issues in public sector equal pay claims is the scope of permissible comparators. This case will bring some comfort to employers, where there have been separate collective bargaining mechanisms to set pay for female and male dominated jobs and employees are never going to work at a common location.