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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dumfries and Galloway Council v. North & Ors  UKEAT 0047_08_2404 (24 April 2009)
Cite as:  ICR 1352,  STI 2146,  UKEAT 0047_08_2404,  SFTD 369,  UKFTT 139 (TC),  ICR 1363,  ICR 1362,  IRLR 915
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|At the Tribunal|
THE HONOURABLE LADY SMITH
Transcript of Proceedings
|For the Appellants||MR I TRUSCOTT
(One of Her Majesty's Counsel)
Dumfries & Galloway Council Legal Services
|For the Respondents||MR B NAPIER
(One of Her Majesty's Counsel)
Messrs Thompsons Solicitors
285 Bath Street
244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, groundsmen, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as janitors, but the claimants did not seek to compare themselves with them. The issue was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2)(c) of the Equal Pay Act 1970. The Employment Tribunal found that they were. Judgment reversed on appeal. On a proper construction of section 1(6) of the 1970 Act, the claimants and comparators were not in the same employment. It had not been established that the comparators would or could have worked, in their comparator jobs, at schools. Even if it was possible to hypothesise that they could have been so employed, it had not been established that their terms and conditions would have been broadly similar to those on which they were employed when not based at schools.
THE HONOURABLE LADY SMITH
"The Judgment of the Employment Tribunal is that the claimants and their comparators are in the same employment within the meaning of Section 1(6) of the Equal Pay Act 1970 (as amended)."
"(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the 'woman's contract'), and has the effect that -
(c) where a woman is employed on work which , not being work in relation to which paragraph (a) or (b) above applied is, in terms of the demands made on her (for instance under which headings as effort, skill and decision ) of equal value to that of a man in the same employment –
(i) if ( apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed , that term of the woman's contract shall be treated as so modified as not to be less favourable , and
(ii) if ( apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed , the woman's contract shall be treated as including such a term…
(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor –
(b) in the case of an equality clause falling within subsection (2) (c) above, may be such a material difference.
(6) …for the purposes of this section –
…men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."
"We are unanimously of the view that the phrase 'and at which common terms and conditions of employment are observed' relates to the establishments in Great Britain which include that one. It does not relate to the phrase 'the same establishment'. So that once it is found that the applicants and the comparator are at the same establishment, that is all that is necessary for the applicants to prove." (p.728D-E)
(a) show that common terms and conditions are observed generally as between the establishments perhaps by relying on the fact that the women doing her class of job at establishment A are employed under the same collective agreement as the men doing her male comparator's job at establishment B (the 'paradigm, though not necessarily the only example, of the common terms and conditions of employment contemplated by the subsection' per Lord Bridge of Harwich in Leverton at paragraph 7),
(b) show that the women doing her class of job at establishment A are employed there on common terms and conditions and that men doing her comparator's class of job at establishment B and any man actually employed or who would be employed to do that class of job at establishment A are, or would be, employed on terms and conditions that are common to them (although different from the women's terms and conditions).
"35. It is plain that from the beginning, although the woman had to show that her comparator or comparators ('men') was or were employed by her employer or by an associated employer of her employer, and that she could not point to higher wages being paid by other employers, yet she was not limited to selecting male workers from the place where she herself worked. The reason for this is obvious, since otherwise an employer could so arrange things as to ensure that only women worked at a particular establishment or that no man who could reasonably be considered as a possible comparator should work there . A woman can thus point to men employed in her own establishment or in other establishments of her employer in Great Britain. But the other establishments which include her establishment must be ones at which common terms and conditions of employment are observed generally or for employees of the relevant classes. The words 'which include that one' may at first sight be puzzling since she can under the earlier words point to men employed at the same establishment as hers. The words are, however, to be read with the following words: 'at which common terms…are observed'. Those common terms must be observed not only at other establishments but also at the establishment at which the woman works if employees of the relevant classes are employed there."
"What therefore has to be shown is that the male comparators at other establishments and at her establishment share common terms and conditions. If there are no such men at the applicant's place of work then it has to be shown that like terms and conditions would apply if men were employed there in the particular jobs concerned."
"…The purpose of requiring common terms and conditions was to avoid it being said simply: 'a gardener does work of equal value to mine and my comparator at another establishment is a gardener.' It was necessary for the applicant to go further and show that gardeners at other establishments and at her establishment were or would be employed on broadly similar terms."
"In the absence of common terms and conditions, a way needed to be found of ascertaining whether, if they were to have been employed under the same roof, the women and men would have had common terms and conditions."
which would seem to suggest that the task is to show actually or hypothetically that women's and men's terms and conditions would be common as between them. I have to confess to having some difficulty with that approach firstly because it does not accord with Britfish (which has never been disapproved) or with what Lord Slynn says at paragraph 38 and secondly because, as I read section 1(6), the task is, rather, to identify whether or not there is such commonality or uniformity in the employment régime as between the establishments that it is fair to require an employer to treat men and women employed in them on equal terms.
THE TRIBUNAL'S JUDGMENT
"…the tribunal was not satisfied that the claimants and their comparators are employed at establishments at which common terms and conditions are observed generally by the respondents sufficient to establish that they are in the same employment within the meaning of Section 1(6) of the Act."
"….. the fact the claimant and her comparator are not employed under the same collective agreement does not prevent them from working in the same establishment in terms of Section 1(6)."
"Therefore the earlier concerns about differences in pay and grading do not apply to the issue of commonality between the comparators' terms and conditions as they are all employed under the same collective agreement, namely the Green Book…"
"….to consider what terms and conditions would apply to the comparators if they were employed at the claimants' establishment."
"…this may well involve consideration of a hypothetical situation. It is not enough therefore for the respondents to say that the comparators would never be employed at the claimants' establishment."
"In these circumstances the Tribunal did not, as suggested by the respondents, find it impossible to conclude that the comparators, including Leisure Attendants on the basis that schools have leisure facilities and swimming pools, could be employed on broadly similar terms to those conditions under which they are currently employed. Accordingly, for the purposes of Section 1(6) of the Act, the claimants and comparators are employed at different establishments on which common terms and conditions of employment are observed for the claimants and comparators."
"While there has been joint bargaining in relation to annual pay increases for claimants and comparators for some time, the Tribunal was still unable to accept that this altered the position that different pay scales and grading exist and determine the rates of pay for claimants and comparators."
DISCUSSION AND DECISION