Equal pay, equal work?
A man and a woman doing similar work should be paid equally. That has been the law since the Equal Pay Act 1970, which is now subsumed into the Equality Act 2010. In order to succeed in an equal pay claim, a woman must show that there are other employees in the same employment doing comparable work who are paid more than her without a justification. This raises a number of issues, one of which is when men and women are deemed to be in the ‘same employment’. That is a threshold condition before a claim can be entertained further. The Supreme Court ruled on that issue this week in North and others v Dumfries & Galloway Council [2013] UKSC 45. This case concerned the interpretation of part of s.1(6) Equal Pay Act 1970 which has since been replaced by s.79 Equality Act 2010. This decision would apply to the 2010 legislation as well as the previous provisions.
The case was brought by a group of female classroom assistants and other education workers employed in the council’s schools under a collective agreement known as the ‘blue book’. They sought to compare themselves with a group of largely male manual workers employed by the same council under an alternative collective agreement known as the ‘green book’. Those workers were not school-based. The green book contained the more generous pay and conditions.
Because the claimants were neither employed under the same terms and conditions as their comparators, nor at the same establishment (schools being separate establishments to the Council’s depots and other locations where the manual workers were employed), the claimants had to demonstrate that if the manual workers were employed alongside them in the schools, they would be employed under the same ‘green book’ conditions as they were in their current employment. A tribunal would then make a hypothetical comparison in order to answer this question.
The Supreme Court found for the claimants.
- It held that there was no need for the tribunal to consider whether there was a ‘real possibility’ or ‘feasibility’ that the comparators might work in the claimant’s establishment.
- Moreover, a tribunal should not speculate as to what adjustments might be made to the comparator employees’ terms and conditions if they move to the claimants’ establishment. The correct hypothetical comparator is the chosen comparator group doing its current job in the claimants’ establishments.
- The equal pay legislation was designed to enable comparisons between workers who did not, and never would, work in the same place.
- The UK’s equal pay legislation was to give direct effect to the EU law principle requiring equal pay where a pay inequality is attributable to a single source capable of correcting it (e.g. a local council). If the legislation were to frustrate making a comparison between groups of workers in such a situation, it would contravene that principle.
Thus, the claimants in this case were in the “same employment” as the council’s manual workers, and so the threshold condition enabling a Tribunal to scrutinise their pay disparity was met.
The case will be sent back to their local Employment Tribunal for consideration of whether the claimants’ work is indeed of equal value and equivalent to that of the manual workers, and whether there are material factors other than the difference in sex which explain the pay disparity. So although the first threshold has been met, these claimants have not yet won their case.
