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Supreme Court Equal Pay Landmark

North and Others v Dumfries and Galloway Council. (Scotland) [2013] UKSC 45North and Others v Dumfries and Galloway Council. (Scotland) [2013] UKSC 45

office blockIn a ruling of enormous significance to employers and employees alike, the Supreme Court has opened the way for a group of 251 female local authority workers to press on with equal pay claims on the basis that there was an unjustified pay differential between themselves and men performing equivalent roles for the same employer but at different locations.

The female classroom assistants, support for learning assistants and nursery nurses were employed by Dumfries and Galloway Council on terms contained in a national collective agreement known as the ‘Blue Book’. They sought to compare themselves to male workers, including groundsmen and refuse collectors, who were employed under a different agreement, the ‘Green Book’, which entitled them to substantial supplements on top of their basic pay which were not available to the women.

The central issue in the case was whether the women could satisfy the threshold conditions set out in section 1(6) of the Equal Pay Act 1970 in order to bring claims alleging that they were employed under less favourable terms and conditions than certain of the council’s male employees. To that end, it was necessary for the women to establish that the male employees were ‘in the same employment’ as they were, notwithstanding that the men were employed on different terms and conditions and at different establishments.

Following a pre-hearing review, an employment tribunal (ET) ruled in the women’s favour on that issue on the basis that it could be established that, if the comparators had been employed at the same establishments as the women, they would have been engaged under broadly similar terms to those under which they were currently employed.

The Employment Appeal Tribunal (EAT) allowed the council’s appeal against that decision on the ground that the women could not show that there was a ‘real possibility’ that the comparators could be employed in schools to do their existing jobs. The Court of Session subsequently held that the EAT had applied the wrong test but that the women’s case still failed on the basis it had not been shown that, if the comparators were to be based at schools, they would be employed on Green Book terms and conditions.

The Supreme Court unanimously allowed the women’s appeal against that decision and restored the decision of the ET, permitting the claims to be brought. The ET will now decide whether the women’s roles were in fact of equal value to that of the male comparators and, if so, whether there was an explanation other than the difference in sex for the difference between their terms and conditions.

The Court noted that the requirement that claimants and their chosen comparators must be in the same employment before a claim can be brought under the Act does not simply mean that they must be employed by the same employer. If they do not work at the same establishment as their comparators, claimants must, by section 1(6), show that they are both ‘employed at establishments in Great Britain … at which common terms and conditions of employment are observed either generally or for employees of the relevant classes’.

The common terms and conditions were between the comparators’ terms at different establishments and those on which they were or would be employed at the claimant’s establishment. It was no answer to say that no such comparators ever would be employed at the same establishment as the claimant; otherwise it would be far too easy for an employer to arrange things so that only men worked in one place and only women in another.

The Court ruled that the correct hypothesis to consider was the transfer of the comparators to do their present job in a different location. The evidence of the council’s Group Manager of Human Resources had confirmed that, although he could not envisage it happening, in the event that the comparators were based in schools then they would retain their Green Book conditions.

Ruling that the ET had adopted the correct test, the Court found that it was not necessary to show that it was feasible that the women and their comparators would work at the same establishment. The requirement for such a finding would be an unwarranted gloss on section 1(6) and would defeat the object of the legislation.

The fact that, of necessity, work had to be carried on in different places was no barrier to equalising the terms on which it was done. It was not the function of the ‘same employment’ test to establish comparability between the jobs done, but simply to weed out those cases in which geography plays a significant part in determining the relevant terms and conditions.

Ruling that section 1(6) set a low threshold which did not operate as a barrier to the comparison proposed in the case, the Court noted that this broader construction of the provision was more consistent with the requirements of European Union law, to which the Act gave effect, and the case law of the European Court of Justice.