Brownbill and ors v St Helens and Knowsley Hospital NHS Trust
Section 1(2) of the 1970 Equal Pay Act defines a “term” of a contract as a provision with “sufficient content” that can be compared with a similar provision in another contract. In Brownbill and ors v St Helens and Knowsley Hospital NHS Trust, the Employment Appeal Tribunal (EAT) said that tribunals must compare each individual term separately, not lump all the terms together.
The women’s union, Unison, instructed Thompsons to act on their behalf.
Basic facts
Mrs Brownbill and her colleagues (mainly health care assistants) claimed that prior to the implementation of a new pay structure called Agenda for Change in August 2004, terms relating to unsocial hours in their contracts were less favourable to similar terms in the contracts of their male comparators (drivers, porters and parking attendants).
The women were paid time and one third for working their normal contractual hours on Saturday and time and two thirds for working on Sunday and bank holidays. The men, by contrast, were paid time and a half for Saturday and double time for Sundays and bank holidays.
The women brought equal pay claims.
Tribunal decision
At a pre-hearing review, the tribunal agreed that each of the claimants and the comparators had a clause entitling them to an enhanced payment for unsocial hours during the standard working week.
It said these were terms with distinct provisions and sufficient content so “that the benefits that are conferred by the provision can be contrasted” . The judge also accepted that the “uplift” in the two sets of terms and conditions was of a different percentage.
However, the judge then went on to say that, following the decision in Degnan v Redcar and Cleveland Borough Council (in which the Court of Appeal ruled that an attendance allowance was part of a term dealing with basic hourly pay), the unsocial hours payments in this case had to be calculated as part of the women’s basic pay.
As the women earned more overall than their male counterparts when the payments were included, the tribunal said they were not treated any less favourably than the men.
EAT decision
Overturning the tribunal decision, the EAT said that the tribunal had adopted the wrong approach and that it was irrelevant whether Mrs Brownbill and her colleagues would be better off overall if they received a similar uplift to the men.
The Equal Pay Act was not a “fair wages statute”, nor was it “concerned with whether the outcome in any particular case is fair and equitable”. The only question was whether “any term” of the women’s contract was “less favourable to the woman than a term of a similar kind” in her comparator’s contract.
In Hayward v Cammell Laird Shipbuilders Ltd (confirmed by numerous European decisions), the House of Lords had said that the “natural meaning of the word 'term' in this context is a distinct provision or part of the contract which has sufficient content to make it possible to compare it from the point of view of the benefits it confers with similar provision or part in another contract …".
The EAT distinguished Degnan, saying that it did not establish the general principle that contract terms should be compared as a whole, rather than individually. In this case the tribunal had made clear that the relevant terms in the claimants’ contracts could be compared with those of the comparators but had failed to do so.
It therefore remitted the case back to the tribunal to make the necessary comparison.