Claiming equality

Dumfries and Galloway Council v North and ors

Equal pay claimants who rely on a comparator at a different “establishment”, have to show that they share common terms and conditions. The Employment Appeal Tribunal (EAT) said in Dumfries and Galloway Council v North and ors that claimants must show there is a “real possibility” that common terms and conditions would apply if the comparator worked at her establishment.

The claimants’ union, UNISON, instructed Thompsons to act on their behalf.

Basic facts

Over 200 classroom assistants, learning assistants and nursery nurses employed in local authority schools lodged equal pay claims with male manual workers also employed by the local authority.

The male comparators were employed as road workers, groundsmen, refuse collectors, refuse drivers and leisure attendants based at depots around the local authority area and at a swimming pool. They were employed on terms and conditions known as the “Green Book”, whereas the women worked under the terms set out in the “Blue Book”.

The women claimed that they were employed on work of equal value to their male comparators and that they were in the “same employment” as them, for the purposes of section 1(6) of the Equal Pay Act 1970.

Tribunal decision

Relying on the case of British Coal Corporation v Smith, the tribunal decided that although the women and their comparators were employed under different collective agreements at different establishments, the women could still be treated as being in the same employment with their comparators under section 1(6) if they could show that they shared common terms and conditions of employment.

The tribunal said that the test in British Coal allowed the women to make a hypothetical comparison between their terms and conditions and those that would apply to their comparators if they worked in the same place (even if the comparator would never be employed there in reality). It concluded that the men would be employed on broadly similar terms if they worked at the schools.

The Council appealed.

EAT decision

And the EAT upheld the appeal, saying that the tribunal had misunderstood the test in British Coal.

Although it was “open to a woman to show that common terms and conditions would apply if men were employed at her establishment”, this hypothesis had to be based on a “real possibility” that it could occur in the real world. So, for example, a woman who worked in a “gardenless and plantless fifth floor office” could not compare herself with a gardener as there was no chance that a gardener would ever be employed in her office.

Although the whole point of section 1(6) is to allow a woman to compare herself with a man who works in another of her employer’s establishments, this only applies “where there are factors which show that there is a commonality or uniformity of employment régime as between them”. If the comparator does a job which does not actually exist at the women’s establishment, then it would be hard to show such “commonality”.

She also has to show that there is a real possibility that her comparator could be employed at her “establishment” doing a job that is broadly similar to the one he does at his current place of work. She then has to show that the terms and conditions on which he would be employed would be broadly similar to those under which is currently employed, “taking account of any particular conditions that apply to all employees at her establishment”.

Finally, the EAT said that even if it was possible for the comparators to be employed at the claimants' establishments, that would still not be enough to satisfy section 1(6) because of the need to provide evidence of broadly similar terms and conditions.

It said that if the tribunal had taken into account all the differences between the terms and conditions of the women and their comparators (for instance, the women had to go through disclosure check procedures and were subject to the day-to-day management and direction of the headmaster), it could not have concluded that they were broadly similar.