An overview of the most important equal pay cases decided recently by the courts
The number of equal pay cases reaching the courts is now of almost epidemic proportion, making it well nigh impossible for trade unionists to keep on top of the most important decisions.
Victoria Phillips, Head of Employment Rights at Thompsons, identifies some of the key cases and extrapolates the relevant points for trade unions.
Gutridge -v- Sodexho
This case concerned a TUPE transfer in 2001. Under the Equal Pay Act, time usually starts running from the end of a particular contract. But the tribunal decided that a TUPE transfer did not trigger the time limit in claims for equal pay that were not pension claims, unless there was some other contract change. This case is now being appealed by the employers to the Employment Appeal Tribunal (EAT).
Dolphin -v- Hartlepool Borough Council
Supervisory assistants, secretaries, clerks and teaching assistants in voluntary-aided schools employed by the governing body claimed equal pay with manual staff employed by Hartlepool Borough Council. As the law does not allow equal pay claims between employees with different employers, the women in Dolphin argued that, in practice, the governing body followed the same terms and conditions as the local authority collective agreement.
The EAT said the collective agreement could not overcome the fact that they had separate employers from the men. Staff working in voluntary-aided, foundation, trust and academy schools cannot therefore compare themselves to those working in other parts of local authority employment.
Armstrong -v- Newcastle upon Tyne NHS Hospital Trust
The Court of Appeal decided that 124 women in one hospital trust could not compare themselves with men in another hospital trust because each trust, although part of the NHS, had separate pay and employment powers and so there was no “single source” for setting pay.
This decision allows employers to try to limit the effect of the Equal Pay Act by arguing that, even where there is the same employer, there still needs to be a “single source” of the pay inequality. This allows them to try to stop comparisons between men and women whose pay is set by different collective agreements. Given the number of reorganisations in the NHS in recent years, this decision makes it very important to have full employment histories for all claimants and comparators.
South Tyneside Metropolitan Borough Council -v- Anderson
School support assistants claimed equal pay with road sweepers on the same grade and with the same employer, but who received an additional bonus. South Tyneside argued that, as the women worked at different places to the men and were on different terms and conditions, they did not have to pay them equally.
The Court of Appeal said that, if a woman works at a different place to that of her comparator, the terms and conditions just have to be broadly similar to be able to make a comparison. They do not have to be identical and the women therefore won their claim. This decision means that women working in local authority schools can compare themselves to other local authority workers.
Bainbridge -v- Redcar & Cleveland Borough Council
Redcar and Cleveland BC replaced the White Book and Purple Book with the Green Book on 1 April 2004, which allowed for four years’ pay protection. Both White and Purple Book women had started lodging equal pay claims with White Book men (who got additional allowances) in July 2003.
Pay protection: The EAT held that the council could not justify pay protection for an advantaged male group in circumstances where there had been pre-existing inequality in pay due to sex discrimination. They could, however, equalise pay downwards but must do so in full and immediately.
It also said that some of the women were entitled to the pay protection as they had established valid equal pay claims by 1 April 2004, but had just not received the money due to them. Had they done so, they would have been eligible.
This constituted direct sex discrimination. This aspect of the decision was appealed to the Court of Appeal in January 2008, along with Surtees -v- Middlesbrough BC.
Genuine material factor (GMF) defences: The EAT also said that women are only entitled to equal pay with a man if they can show that any differences were not justified. If there is a good reason why the man gets a particular bonus, which does not apply to the woman, she will not be entitled to equal pay. In this case, it said the productivity bonus to the men was justified. However the attendance allowance was not, even though there had been a good reason for giving it to the men originally (to improve attendance). As it was no longer achieving the aim for which it was originally given, it could not be relied on by the employers as a defence.
Comparators: The Court of Appeal said that in “work rated as equivalent” claims (where there is a valid job evaluation) and in equal value claims, a woman can compare herself with someone on a lower grade or with someone whose job has less value where that person is paid more than her.
Job evaluation: Purple Book claimants could not rely on a Green Book job evaluation scheme to claim equal pay with comparators on the same grade in the Green Book scheme before it had been implemented.
Nor could they automatically claim six years back pay. Instead, they had to show that their jobs were of equal value before 1 April 2004, the date when the job evaluation scheme was implemented.
Surtees -v- Middlesbrough BC
The claimant and comparator groups were similar to Bainbridge. Likewise, some claims succeeded but not until after the Green Book had been implemented. Again, as in Bainbridge, the council offered pay protection for the losers under the Green Book scheme.
Pay protection: The EAT held that, where there was no admitted pre-existing inequality in pay due to sex discrimination, the council could justify pay protection as a necessary component for introducing a new equalised pay system. It said that, in certain circumstances, the objective or aim can outweigh the adverse gender impact of the pay protection.
This case is being appealed, with Bainbridge, to the Court of Appeal. The outcome will affect all claims where a gender proofed pay system has been introduced.
Grundy -v- British Airways plc
Mrs Grundy had worked as a support cabin crew (SCC) member for some years when she transferred over to become a member of the cabin crew (CC). She claimed equal pay with a man who had benefited from annual pay increments as a CC member.
The Court of Appeal agreed that there was an adverse impact on women that BA could not justify as the SCC members were mainly women and the CC members almost equally divided between men and women. Provided that tribunals pick the pool for comparison that makes the most sense, the court said they cannot be challenged even if they could have chosen a different pool that would have led to a different outcome.
Chief Constable of West Midlands Police -v- Blackburn
Police officers working 24/7 shifts received an enhancement for doing nights that police on days did not receive. More women than men worked days although the difference was not great.
The EAT said that the employer was justified in making additional payments to staff who worked nights even though it had an adverse impact on women. The additional reward was a fair aim for the unsocial hours and the “social, psychological and other stresses” that night work created outweighed the discriminatory impact.
Joss -v- Cumbria County Council
The EAT made two decisions in this case in 2007 – one on GMF defences and the other on time limits.
GMF defences: The claimants were mainly carers, cleaners and catering workers. Most were on White Book terms but some were on Purple Book terms and claimed equal pay with male manual workers on White Book or Red Book terms.
The council had introduced productivity bonuses years ago for many of the comparators. Cleaners and caretakers had had bonuses until 1988 but these had been taken away to avoid job losses.
Some care assistants who transferred to another employer in 1992 then lost their enhancements (in addition to their bonuses).
The EAT agreed with the tribunal that the road workers productivity scheme was genuine but that, by the time the claims were lodged, it was no longer used to improve productivity. The bonus for the others was a sham. The council could not therefore show a GMF for the difference in pay.
The EAT also said that the tribunal was wrong to say that carers could not have equal pay with roadworkers, on the basis that their productivity could not be improved by pay incentives. Whether the carers’ productivity could be measured and improved was irrelevant once the tribunal had decided that the employer could not justify the bonus.
It was also not convinced by the tribunal’s rejection of the employer’s argument that market forces had led them to reduce the women’s pay and avoid job cuts. This was remitted to another tribunal to consider in more detail.
Time limits: The Equal Pay Act says that claims must be made within six months of the end of “the employment”, meaning from the end of the contract (and not the end of continuous employment).
The EAT said that, where the paperwork shows that the employer and employee agreed to end one contract and start a new one, that is decisive irrespective of how small the changes are between the two contracts. This decision is being appealed to the Court of Appeal.
Highland Council -v- TGWU/Unison
The claimants lodged a number of equal pay grievances with their employer, and duly listed a number of job comparators in their step one letter. They then submitted their tribunal application ET1 forms, which listed those same comparators, as well as an additional number of jobs that they had not previously specified in the grievance letters.
The EAT agreed with the employer that they could not do that. It said that tribunals have to carry out a “qualitative assessment” to find out if the comparators in the ET1s were “materially different from any specified in the grievance document”.